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JOHN  MARSHALL 


BY 


JAMES  BRADLEY  THAYER 


BOSTON  AND  NEW  YORK 
HOUGHTON,  MIFFLIN  AND  COMPANY 
,  Cambri&0e 

1904 


COPYRIGHT,   igoi,   BY  JAMKS   BRADLEY  THAYER 
ALL   RIGHTS    RESERVED 


PREFATORY  NOTE 

THE  writer  has  drawn  with  entire  freedom 
from  an  address  delivered  by  him  at  Cam 
bridge  on  February  4, 1901,  before  the  Har 
vard  Law  School  and  the  Bar  Association 
of  the  City  of  Boston,  and  from  an  article 
on  John  Marshall  in  the  Atlantic  Monthly 
for  March,  1901.  J.  B.  T. 

CAMBRIDGE,  March  30, 1901. 


227635 


CONTENTS 

PAQB 
I.     HlS    LIFE    BEFORE    BECOMING    CHIEF  JuS- 

TICE  ;  HIS  PERSONAL  CHARACTERISTICS  .        1 
II.  ARGUMENTS    AND    SPEECHES;    LIFE    OF 
WASHINGTON  ;  RELATIONS  WITH  JEFFER 
SON     ........      39 

in.  THE  BEGINNINGS  OF  THE  CHIEF  JUSTICE'S 
CAREER  ;     AMERICAN     CONSTITUTIONAL 
LAW;  MARBURY  v.  MADISON          .        .      54 
IV.  MARSHALL'S  CONSTITUTIONAL  OPINIONS     .      82 
V.  THE  WORKING  OF  OUR  SYSTEM  OF  CONSTI 

TUTIONAL  LAW         .....    102 

VL  LETTERS  OF  MARSHALL       .        .        .        .111 

VII.  MARSHALL  AS  A  CITIZEN  AND  A  NEIGHBOR    123 
His  LAST  DAYS   ......    147 


The  portrait  is  from  a  miniature  by  St.  Memin. 


JOHN  MARSHALL 


CHAPTER  I 

HIS     LIFE     BEFORE     BECOMING    CHIEF     JUS 
TICE  ;   HIS   PERSONAL    CHARACTERISTICS 

IN  beginning  his  "  Life  of  Washington," 
Chief  Justice  Marshall  states  that  Wash 
ington  was  born  in  1732,  "near  the  banks 
of  the  Potowmac,"  in  Westmoreland  County,' 
Virginia ;  mentions  his  employment  by  Lord 
Fairfax,  the  proprietor  of  the  Northern 
Neck,  as  surveyor  of  his  estates  in  the  west 
ern  part  of  that  region ;  and  adds  that,  in 
the  performance  of  these  duties,  "  he  ac 
quired  that  information  respecting  vacant 
lands,  and  formed  those  opinions  concerning 
their  future  value,  which  afterwards  contrib 
uted  greatly  to  the  increase  of  his  private 
fortune." 


2    '  :  JOHN  MARSHALL 

Thomas  Marshall,  the  father  of  the  Chief 
Justice,  two  years  older  than  Washington, 
was  also  born  in  Westmoreland  County,  was 
a  schoolmate  of  Washington,  served  with 
him  both  as  surveyor  of  the  Fairfax  estates, 
and  soon  afterwards,  as  an  officer  in  the 
French  and  Indian  wars ;  and  he,  too,  as 
time  passed,  found  like  advantage  from  his 
experience  as  a  surveyor. 

In  1753,  Thomas  Marshall  was  made 
agent  of  Lord  Fairfax  in  the  management 
of  his  estates.  In  the  next  year,  he  married 
Mary  Isham  Keith,  daughter  of  a  Scotch 
clergyman,  whose  wife  was  a  descendant  of 
William  Eandolph,  of  Turkey  Island,  the 
ancestor  of  the  famous  Virginia  family  of 
that  name.  Their  son,  John  Marshall,  the 
oldest  of  fifteen  children,  was  born  on  Sep 
tember  24,  1755,  in  what  was  afterwards 
Fauquier  County,  at  a  little  settlement  then 
known  as  Germantown,  —  now  Midland,  on 
the  Southern  Kailroad,  a  few  miles  south  of 
Maiiassas.  That  was  the  year  of  Braddock's 
defeat,  and  Thomas  Marshall,  like  Washing 
ton,  was  in  the  service,  as  an  officer. 


BEFORE  BECOMING  CHIEF  JUSTICE  3 

In  Marshall's  early  childhood,  his  father's 
household,  situated  in  a  frontier  county, 
must  have  been  agitated  with  the  dreadful 
rumors,  anxieties,  and  terrors  of  the  troubles 
with  the  French  and  Indians.  "  So  late," 
he  tells  us  in  the  "  Life  of  Washington,"  "  as 
the  year  1756,  the  Blue  Ridge  was  the 
northwestern  frontier ;  and  [Virginia]  found 
immense  difficulty  in  completing  a  single 
regiment  to  protect  the  inhabitants  from  the 
horrors  of  the  scalping-knife,  and  the  still 
greater  horrors  of  being  led  into  captivity 
by  savages  who  added  terrors  to  death  by 
the  manner  of  inflicting  it."  It  was  not 
until  two  years  later  that  the  capture  of 
Fort  Duquesne  relieved  Virginia  from  the 
frightful  ravages  that  laid  waste  the  region 
just  west  of  the  Blue  Ridge. 

When  John  Marshall  was  ten  years  old 
or  more,  his  father  left  the  level  country  and 
poor  soil  of  eastern  Fauquier,  for  the  higher 
and  more  fertile  region  in  the  western  part 
of  the  county,  just  under  the  Blue  Ridge. 
At  Midland  all  they  can  show  you  now, 
relating  to  Marshall,  is  a  small,  rude  heap 


4  JOHN  MARSHALL 

of  bricks  and  rubbish,  —  what  is  left  of 
the  house  where  he  was  born  ;  and  children 
on  the  farm  reach  out  to  you  a  handful  of 
the  bullets  with  which  that  sacred  spot 
and  the  whole  region  were  thickly  sown, 
before  a  generation  had  passed,  after  his 
death. 

Marshall's  education  was  got  from  his 
father,  from  such  teachers  as  the  neighbor 
hood  furnished,  and,  for  about  a  year,  at  a 
school  in  Westmoreland  County,  where  his 
father  and  George  Washington  had  at 
tended,  and  where  James  Monroe  was  his 
own  schoolmate.  But  most  he  owed  to  his 
father,  —  a  man  of  good  stock,  of  enter 
prise,  experience,  strong  character  and  sense, 
himself  of  no  mean  education,  —  who,  per 
sonally,  took  great  pains  with  the  training  of 
his  children.  Marshall  admired  his  father, 
and  declared  him  to  be  a  far  abler  man  than 
any  of  his  sons.  From  him  and  the  teachers 
provided  for  him  his  son  got  a  good  knowledge 
of  English  history,  literature,  and  poetry,  and 
a  fair  acquaintance  with  the  classics. 

All  Marshall's  later  youth  was  passed  in 


BEFORE  BECOMING  CHIEF  JUSTICE  5 

the  mountain  region  of  Fauquier  County, 
under  the  Blue  Ridge.  Judge  Story  de 
clared  that  it  was  to  the  hardy,  athletic  hab 
its  of  his  youth  among  the  mountains,  oper 
ating,  we  may  well  conjecture,  upon  a  happy 
physical  inheritance,  "  that  he  probably 
owed  that  robust  and  vigorous  constitution 
which  carried  him  almost  to  the  close  of  his 
life  with  the  freshness  and  firmness  of  man 
hood." 

The  house  that  Marshall's  father  built  at 
Oakhill  is  still  standing,  an  unpretending, 
small,  frame  building,  having  connected  with 
it  now,  as  a  part  of  it,  another  house  built 
by  Marshall's  son  Thomas.  At  one  time 
the  farm  comprised  an  estate  of  six  thousand 
acres.1  Since  1865  it  has  passed  out  of  the 
hands  of  the  family.  It  is  beautifully  placed 
on  high,  rolling  ground,  looking  over  a  great 
stretch  of  fertile  country,  and  along  the 
chain  of  the  Blue  Ridge,  close  by.  To  this 

1  The  Chief  Justice  seems  to  have  inherited  and  accu 
mulated  a  considerable  estate.  By  his  will  he  gave  to 
each  of  his  gTandsons  named  John  a  thousand  acres  of 
land.  The  Green  Bag,  viii.  4.  He  also  had  been  a  sur 
veyor.  Ib.  480. 


6  JOHN  MARSHALL 

region,  where  his  children  and  kindred  lived, 
about  a  hundred  miles  from  Richmond,  Mar 
shall  delighted  to  resort  in  the  summer,  all 
his  life  long.  In  the  autumn  of  1807,  after 
the  Burr  trial,  he  writes  to  a  friend,  "  The 
day  after  the  commitment  of  Colonel  Burr 
for  a  misdemeanor,  I  galloped  to  the  moun 
tains."  "  I  am  on  the  wing,"  he  tells  Judge 
Story  in  1828,  "  for  my  friends  in  the  upper 
country,  where  I  shall  find  rest  and  dear 
friends,  occupied  more  with  their  farms  than 
with  party  politics." 

When  Marshall  was  about  eighteen  years 
old  he  began  to  study  Blackstone  ;  but  he 
quickly  dropped  it,  for  the  troubles  with 
Great  Britain  thickened,  and,  like  his  neigh 
bors,  he  prepared  for  fighting. 

He  seems  to  have  found  a  copy  of  Black- 
stone  in  his  father's  house,  as  he  had  found 
there  much  other  sterling  English  literature. 
It  was  then  a  new  book,  but  already  famous. 
Published  in  England  in  1765-69,  a  thou 
sand  copies  had  been  taken  in  this  country  ; l 
and  just  now  the  first  American  edition  was 

1  Hammond's  Blackstone,  vol.  i.,  pp.  viii.  xxv. 


BEFORE  BECOMING  CHIEF  JUSTICE    7 

out  (Philadelphia,  1771-72),  in  which  the 
list  of  subscribers,  headed  by  the  name 
of  "John  Adams,  barrister  at  law,  Boston," 
had  also  that  of  "  Captain  Thomas  Mar 
shall,  Clerk  of  Dunmore  County."  Dun- 
more  County,  now  Shenandoah,  was  then  a 
very  new  county,  just  over  the  Blue  Ridge 
from  Fauquier ;  and  it  is  believed  that  there 
was  but  one  Captain  Thomas  Marshall  in 
those  parts. 

The  earliest  personal  description  of  Mar 
shall  that  we  have  belongs  to  this  period. 
It  is  preserved  in  Horace  Binney's  admira 
ble  address  at  Philadelphia,  after  Marshall's 
death.  He  gives  it  from  the  pen  of  an  eye 
witness,  a  "  venerable  kinsman  "  of  Mar 
shall.  News  had  come,  in  May,  1775,  of  / 
the  fighting  at  Concord  and  Lexington. 
The  account  shows  us  the  youth,  as  lieuten 
ant,  drilling  a  company  of  soldiers  in  Fau 
quier  County  :  — 

"  He  was  about  six  feet  high,  straight, 
and  rather  slender,  of  dark  complexion, 
showing  little  if  any  rosy  red,  yet  good 
health,  the  outline  of  the  face  nearly  a  cir- 


8  JOHN  MARSHALL 

cle,  and  within  that,  eyes  dark  to  blackness,1 
strong  and  penetrating,  beaming  with  intel 
ligence  and  good  nature;  an  upright  fore 
head,  rather  low,  was  terminated  in  a  hori 
zontal  line  by  a  mass  of  raven-black  hair,  of 
unusual  thickness  and  strength.  The  fea 
tures  of  the  face  were  in  harmony  with  this 
outline,  and  the  temples  fully  developed. 
The  residt  of  this  combination  was  interest 
ing  and  very  agreeable.  The  body  and 
limbs  indicated  agility  rather  than  strength, 
in  which,  however,  he  was  by  no  means  de 
ficient.  He  wore  a  purple  or  pale  blue 
hunting-shirt,  and  trousers  of  the  same  ma 
terial  fringed  with  white.  A  round  black 
hat,  mounted  with  the  buck's  tail  for  a  cock 
ade,  crowned  the  figure  and  the  man.  He 
went  through  the  manual  exercise  by  word 
and  motion,  deliberately  pronounced  and 
performed  in  the  presence  of  the  company, 
before  he  required  the  men  to  imitate  him  ; 
and  then  proceeded  to  exercise  them  with 
the  most  perfect  temper.  .  .  . 

1  Marshall's  eyes  are  often  spoken  of  as  black.     In 
fact,  they  were  brown. 


BEFORE  BECOMING  CHIEF  JUSTICE    9 

"  After  a  few  lessons  the  company  were 
dismissed,  and  informed  that  if  they  wished 
to  hear  more  about  the  war,  and  would  form, 
a  circle  about  him,  he  would  tell  them  what 
he  understood  about  it.  The  circle  was 
formed,  and  he  addressed  the  company  for 
something  like  an  hour.  He  then  challenged 
an  acquaintance  to  a  game  of  quoits,  and 
they  closed  the  day  with  foot-races  and  other 
athletic  exercises,  at  which  there  was  no 
betting." 

"  This,"  adds  Mr.  Binney,  "  is  a  portrait, 
to  which  in  simplicity,  gayety  of  heart,  and 
manliness  of  spirit,  in  everything  but  the 
symbols  of  the  youthful  soldier,  and  one  or 
two  of  those  lineaments  which  the  hand  of 
time,  however  gentle,  changes  and  perhaps 
improves,  he  never  lost  his  resemblance." 

Marshall  accompanied  his  father  to  the 
war  as  a  lieutenant,  and  in  a  year  or  two 
became  a  captain.  In  leaving  the  father 
here,  it  may  be  said  that  three  of  his  sons 
were  with  him  in  the  war,  and  that  he  him 
self  served  with  gallantry  and  distinction  as 
a  colonel.  In  1780,  he  was  at  the  South 


10  JOHN  MARSHALL 

with  General  Lincoln,  and  being  included  in 
the  surrender  of  that  officer  and  on  parole, 
visited  Kentucky,  not  yet  a  State.  After  a 
few  years  he  removed  there  with  the  younger 
part  of  his  family,  leaving  Oakhill,  as  it 
seems,  in  the  hands  of  his  son  John.  He 
died  in  Kentucky  in  1806,  having  survived 
to  witness  the  successive  honors  of  his  son 
culminate  in  his  becoming  Chief  Justice  of 
the  United  States.1 

1  It  may  be  added  that  Thomas  Marshall,  father  of 
the  Chief  Justice,  was  the  son  of  John  Marshall,  called 
"  of  the  Forest,"  from  the  name  of  his  place  in  West 
moreland  County.  Of  this  John  it  is  said,  in  a  little 
autobiography  of  the  Chief  Justice  of  some  five  hundred 
words,  preserved  in  Mr.  Justice  Gray's  valuable  oration 
at  Richmond,  on  February  4,  1901,  that  his  "  parents  mi 
grated  from  Wales  and  settled  in  the  county  of  West 
moreland  in  Virginia."  The  will  of  "  Thomas  Marshall  ? 
carpenter,"  proved  May  31,  1704,  describing  himself  as  of 
Westmoreland  County,  is  printed  in  the  Virginia  Maga 
zine  of  History,  ii.  343,  344 ;  and  it  is  there  stated  in 
a  note  that  this  Thomas  "was  the  first  of  his  race  in 
America."  On  the  other  hand,  we  are  told  by  an  intelli 
gent  writer  in  Appleton's  Cyclopaedia  of  American  Bio 
graphy,  and  elsewhere,  that  the  father  of  "  John  of  the 
Forest "  was  Thomas,  born  in  Virginia  in  1655,  who  died 
in  1704  ;  and  that  it  was  his  father,  John,  a  captain  of 
cavalry  in  the  service  of  Charles  I.,  who  emigrated  to 
Virginia  about  1650. 


BEFORE  BECOMING  CHIEF  JUSTICE  11 

It  was  in  the  autumn  of  1775  that  Mar 
shall,  as  lieutenant  in  a  regiment  of  minute- 
men,  of  which  his  father  was  major,  marched 
down  through  the  country  to  the  seaboard 
to  resist  Lord  Dunmorers  aggressions.  They 
were  clothed,  we  are  told,  in  green  home 
spun  hunting-shirts,  having  the  words  "  Lib 
erty  or  Death  "  in  large  letters  on  the  breast, 
with  bucks'  tails  in  their  hats,  and  toma 
hawks  and  scalping-knives  in  their  belts. 
The  enemy  at  Norfolk  feared,  it  is  said,  for 
their  scalps,  but  they  lost  none.1 

He  was  thus  in  the  first  fighting  in  Vir 
ginia,  in  the  fall  of  1775,  at  Norfolk  ;  after 
wards  he  served  in  New  Jersey,  Pennsyl 
vania,  and  New  York;  and  again  in  Vir 
ginia  toward  the  end  of  the  war.  He  was 
at  Valley  Forge,  in  the  fighting  at  the 
Brandywine,  Germantowii,  Monmouth,  Stony 
Point,  and  Paulus  Hook,  between  1776  and 
1779.  He  served  often  as  judge  advocate, 
and  in  this  way  was  brought  into  personal 
relations  with  Washington  and  Hamilton. 
A  fellow  officer  and  messmate  describes  him, 

1  Flanders,  Lives  qf  the  Chief  Justices,  ii.  291. 


12  JOHN  MARSHALL 

during  the  dreadful  winter  at  Valley  Forge, 
as  neither  discouraged  nor  disturbed  by  any 
thing,  content  with  whatever  turned  up,  and 
cheering  everybody  by  his  exuberance  of 
spirits  and  "  his  inexhaustible  fund  of  anec 
dote."  He  was  "idolized  by  the  soldiers 
and  Ins  brother  officers." 

President  Quincy  gives  us  a  glimpse  of 
him  at  this  period,  as  he  heard  him  described 
at  a  dinner  with  John  Randolph  and  a  large 
company  of  Virginians  and  other  Southern 
gentlemen.  They  were  talking  of  Marshall's 
early  life  and  his  athletic  powers.  "  It  was 
said  that  he  surpassed  in  them  any  man  in 
the  army ;  that  when  the  soldiers  were  idle 
at  their  quarters,  it  was  usual  for  the  offi 
cers  to  engage  in  matches  of  quoits,  or  in 
jumping  and  racing  ;  that  he  would  throw  a 
quoit  farther,  and  beat  at  a  race  any  other ; 
that  he  was  the  only  man  who,  with  a  run 
ning  jump,  could  clear  a  stick  laid  on  the 
heads  of  two  men  as  tall  as  himself.  On 
one  occasion  he  ran  in  his  stocking  feet  with 
a  comrade.  His  mother,  in  knitting  his 
stockings,  had  the  legs  of  blue  yarn  and  the 


BEFORE  BECOMING  CHIEF  JUSTICE   13 

heels  of  white.  This  circumstance,  com 
bined  with  his  uniform  success  in  the  race, 
led  the  soldiers,  who  were  always  present  at 
these  races,  to  give  him  the  sobriquet  of 
4  Silver-Heels,'  the  name  by  which  he  was 
generally  known  among  them." 

Toward  the  end  of  1779,  owing  to  the 
disbanding  of  Virginia  troops  at  the  end  of 
their  term  of  service,  he  was  left  without  a 
command,  and  went  to  Virginia  to  await  the 
action  of  the  legislature  as  to  raising  new 
troops.  It  was  a  fortunate  visit ;  for  at 
Yorktown  he  met  the  young  girl  who,  two 
or  three  years  later,  was  to  become  his  wife ; 
and  he  was  also  able  to  improve  his  leisure 
by  attending,  for  a  few  months  in  the  early 
part  of  1780,  two. courses  of  lectures  at  the 
college,  on  law  and  natural  philosophy.  This 
was  all  of  college  or  university  that  he  ever 
saw ;  but  later,  from  several  of  them,  he 
received  their  highest  honors.  In  1802 
the  college  of  New  Jersey  (Princeton,  where 
his  oldest  son,  Thomas,  was  to  graduate 
in  1803),  in  1806,  Harvard,  and  in  1815, 
the  University  of  Pennsylvania,  made  him 


14  JOHN  MARSHALL 

doctor  of  laws.1  Marshall's  opportunity  for 
studying  law,  under  George  Wythe,  at  Wil 
liam  and  Mary  College,  seems  to  have  been 
owing  to  a  change  in  the  curriculum,  made, 
just  at  that  time,  at  the  instance  of  Jeffer 
son,  governor  of  the  State,  and,  in  that  capa 
city,  visitor  of  the  college.  The  chair  of 
divinity  had  just  been  abolished,  and  one 
of  law  and  police,  and  another  of  medicine, 
were  substituted.  On  December  29,  1779, 
the  faculty  voted  that,  "  for  the  encourage 
ment  of  science,  a  student,  on  paying 
annually  1000  pounds  of  tobacco,  shall  be 
entitled  to  attend  any  school  of  the  follow 
ing  professors,  viz. :  of  Law  and  Police ;  of 
Natural  Philosophy  and  Mathematics,"  etc. 
Marshall  chose  the  two  courses  above  named ; 
he  must  have  been  one  of  the  very  first  to 
avail  himself  of  this  new  privilege.  He 
remained  only  one  term.  In  view  of  what 
was  to  happen  by  and  by,  it  is  interesting  to 
observe  that  this  opportunity  for  education 
in  law  came  through  the  agency  of  Thomas 
Jefferson. 

1  His    youngest    son,    Edward    Carrington    Marshall, 
graduated  at  Harvard  in  1826. 


BEFORE  BECOMING  CHIEF  JUSTICE   15 

The  records  of  the  Phi  Beta  Kappa  Soci 
ety  at  William  and  Mary  College,  where 
that  now  famous  society  had  originated  less 
than  a  year  and  a  half  before,  show  that  on 
the  18th  of  May,  1780,  "Captain  John 
Marshall,  being  recommended  as  a  gentle 
man  who  would  make  a  worthy  member  of 
the  society,  was  balloted  for  and  received  ;  " 
and  three  days  later  he  was  appointed,  with 
others,  "to  declaim  the  question  whether 
any  form  of  government  is  more  favorable 
to  public  virtue  than  a  Commonwealth." 
Bushrod  Washington  and  other  well-known 
names  are  found  among  his  associates  in  this 
chapter,  which  has  been  well  called  "an 
admirable  nursery  of  patriots  and  states 
men." 

It  was  in  the  summer  of  1780  that  Mar 
shall  was  licensed  to  practice  law. 

During  this  visit  to  Virginia,  as  I  have 
said,  he  met  the  beautiful  little  lady,  four 
teen  years  old,  who  became  his  wife  at  the 
age  of  sixteen,  was  to  be  the  mother  of  his 
ten  children,1  and  was  to  receive  from  him 

1  Only  six  of  his  children  grew  to  full  age.    See  his 


1C  JOHN  MARSHALL 

the  most  entire  devotion  until  the  day  of  her 
death  in  1831.  Some  letters  of  her  older 
sister,  Mrs.  Carrington,  written  to  another 
sister,  have  lately  been  printed,  which  give 
us  a  glimpse  of  Captain  Marshall  in  his 
twenty-fifth  year.  These  ladies  were  the 
daughters  of  Jaquelin  Ambler,  formerly  col 
lector  of  customs  at  Yorktown,  and  then 
treasurer  of  the  colony,  and  living  in  that 
town,  next  door  to  the  family  of  Colonel 
Marshall.  Their  mother  was  that  Rebecca 
Burwell,  for  whom,  under  the  name  of  "  Be 
linda,"  Jefferson  had  languished,  in  his 
youthful  correspondence  of  some  twenty 
years  before.  The  girls  had  often  heard  the 
captain's  letters  to  his  family,  and  had  the 
highest  expectations  when  they  learned  that 
he  was  coming  home  from  the  war.  They 
were  to  meet  him  first  at  a  ball,  and  were 
contending  for  the  prize  beforehand.  Mary, 
the  youngest,  carried  it  off.  "  At  the  first 
introduction,"  writes  her  sister,  who  was  but 

touching  letter  to  Judge  Story  of  June  26,  1831 :  "  You 
ask  me  if  Mrs.  Marshall  and  mysolf  have  ever  lost  a  child. 
We  have  lost  four,"  etc.  —  Proceedings  of  the  Mass.  Hist. 
Soc.  (:M  series)  xiv.  o45. 


BEFORE  BECOMING  CHIEF  JUSTICE   17 

one  year  older,  "  he  became  devoted  to  her." 
"  For  my  own  part,"  she  adds,  "  I  felt  not  the 
smallest  wish  to  contest  the  prize  with  her. 
.  .  .  She,  with  a  glance,  divined  his  charac 
ter,  .  .  while  I,  expecting  an  Adonis,  lost 
all  desire  of  becoming  agreeable  in  his  eyes 
when  I  beheld  his  awkward,  unpolished 
manner  and  total  ,ji£gligence  of  person." 
"  How  trivial  now  seem  all  such  objections !  " 
she  exclaims,  writing  in  1810,  and  going  on 
to  speak  with  the  utmost  admiration  of  his 
relations  to  herself  and  all  her  family,  and 
above  all,  to  his  wife.  "  His  exemplary  ten 
derness  to  our  unfortunate  sister  is  without 
parallel.  With  a  delicacy  of  frame  and 
feeling  that  baffles  all  description,  she  be 
came,  early  after  her  marriage,  a  prey  to 
extreme  nervous  affection,  which,  more  or 
less,  has  embittered  her  comfort  through 
her  whole  life ;  but  this  has  only  seemed  to 
increase  his  care  and  tenderness,  and  he  is, 
as  you  know,  as  entirely  devoted  as  at  the 
moment  of  their  first  being  married.  Al 
ways  and  under  every  circumstance  an  en 
thusiast  in  love,  I  have  very  lately  heard 


18  JOHN  MARSHALL 

him  declare  that  he  looked  with  astonish 
ment  at  the  present  race  of  lovers,  so  totally 
unlike  what  he  had  been  himself.  His  never- 
failing  cheerfulness  and  good  humor  are  a 
perpetual  source  of  delight  to  all  connected 
with  him,  and,  I  have  not  a  doubt,  have 
been  the  means  of  prolonging  the  life  of  her 
he  is  so  tenderly  devoted  to." 

"  He  was  her  devoted  lover  to  the  very 
end  of  her  life,"  another  member  of  his  fam 
ily  connection  has  said.  And  Judge  Story, 
in  speaking  of  him  after  his  wife's  death, 
described  him  as  "  the  most  extraordinary 
man  I  ever  saw  for  the  depth  and  tenderness 
of  his  feelings." 

A  little  touch  of  his  manner  to  his  wife 
is  seen  in  a  letter,  which  is  in  print,  written 
to  her  from  the  city  of  Washington,  on  Feb 
ruary  23,  1825,  in  his  seventieth  year.  He 
had  received  an  injury  to  his  knee,  about 
which  Mrs.  Marshall  was  anxious.  "  I 
shall  be  out,"  he  writes,  "  in  a  few  days. 
All  the  ladies  of  the  secretaries  have  been 
to  see  me,  some  more  than  once,  and  have 
brought  me  more  jelly  than  I  could  eat,  and 


BEFORE  BECOMING  CHIEF  JUSTICE  19 

many  other  things.  I  thank  them,  and 
stick  to  my  barley  broth.  Still  I  have  lots 
of  time  on  my  hands.  How  do  you  think  I 
beguile  it  ?  I  am  almost  tempted  to  leave 
you  to  guess,  until  I  write  again.  You  must 
know  that  I  begin  with  the  ball  at  York, 
our  splendid  assembly  at  the  Palace  in  Wil- 
liamsburg,  my  visit  to  Richmond  for  a  fort 
night,  my  return  to  the  field,  and  the  very 
welcome  reception  you  gave  me  on  my  arri 
val  at  Dover,  our  little  tiffs  and  makings-up, 
my  feelings  when  Major  Dick l  was  courting 
you,  my  trip  to  the  Cottage  [the  Ambler 
home  in  Hanover  County,  where  the  mar 
riage  took  place],2  —  the  thousand  little  in 
cidents,  deeply  affecting,  in  turn." 

This  "  ball  at  York  "  was  the  one  of 
which  Mrs.  Carrington  wrote  ;  and  of  the 
"  assembly  at  the  Palace  "  she  also  gave  an 
account,  remarking  that  "  Marshall  was  de 
voted  to  my  sister." 

Miss  Martineau,  who  saw  him   the  year 

1  Richard  Anderson,  father  of  Robert  Anderson,  the 
hero  of  Fort  Sumter.     See  Marion  Harland's  Old  Colo 
nial  Homesteads,  97. 

2  But  see  Mrs.  Hardy,  in  The  Green  Bag,  viii.  482. 


20  JOHN  MARSHALL 

before  he  died,  speaks  with  great  emphasis 
of  what  she  calls  his  "  reverence "  and  his 
affectionate  respect  for  women.  There  were 
many  signs  of  this  all  through  his  life.  Even 
in  the  grave  and  too  monotonous  course  of 
his  "  Life  of  Washington,"  one  comes  now  and 
then  upon  a  little  gleam  of  this  sort,  that 
lights  up  the  page  ;  as  when  he  speaks  of 
Washing-ton's  engagement  to  Mrs.  Custis,  a 
lady  "  who  to  a  large  fortune  and  a  fine  per 
son  added  those  amiable  accomplishments 
which  ...  fill  with  silent  but  unceasing 
felicity  the  quiet  scenes  of  private  life." 
When  he  is  returning  from  France,  in  1798, 
he  writes  gayly  back  from  Bordeaux  to  the 
Secretary  of  Legation  at  Paris :  "  Present 
me  to  my  friends  in  Paris  ;  and  have  the 
goodness  to  say  to  Madame  Vilette,  in  my 
name  and  in  the  handsomest  manner,  every 
thing  which  respectful  friendship  can  dic 
tate.  When  you  have  done  that,  you  will 
have  rendered  not  quite  half  justice  to  my 
sentiments."  "  He  was  a  man,"  said  Judge 
Story,  "  of  deep  sensibility  and  tenderness ; 
.  .  .  whatever  may  be  his  fame  in  the  eyes 


BEFORE  BECOMING  CHIEF  JUSTICE  21 

of  the  world,  that  which,  in  a  just  sense, 
was  his  brightest  glory  was  the  purity,  affec- 
tionateiiess,  liberality,  and  devotedness  of  his 
domestic  life." 

Marshall   left   the    army  in    1781,  when 
most  of  the  fighting  in  Virginia  was  over ;   )  ^ 
and  began  practice  in  Fauquier  County  when  ( 
the    courts  were  opened,  after  Cornwallis's 
surrender,  in  October  of  that  year. 

Among  his  neighbors  he  was  always  a 
favorite.  In  the  spring  of  1782  he  was 
elected  to  the  Assembly,  and  in  the  autumn  1 
to  the  important  office  of  member  of  the  I 
"  Privy  Council,  or  Council  of  State,"  con 
sisting  of  eight  persons  chosen  by  joint 
ballot  of  the  two  houses  of  the  Assembly. 
"Young  Mr.  Marshall,"  wrote  Edmund 
Pendleton,  presiding  judge  of  the  Court  of 
Appeals,  to  Madison,  in  November  of  that 
year,  "  is  elected  a  councilor.  .  .  .  He  is 
clever,  but  I  think  too  young  for  that  de 
partment,  which  he  should  rather  have 
earned,  as  a  retirement  and  reward,  by  ten 
or  twelve  years  of  hard  service."  But, 
whether  young  or  old,  the  people  were  for- 


22  JOHN  MARSHALL 

ever  forcing  him  into  public  life.  Eight 
times  he  was  sent  to  the  Assembly  ;  in  1788 
to  the  Federal  Convention  of  Virginia,  and 
in  1798  to  Congress. 

Unwelcome  as  it  was  to  him,  almost  al 
ways,  to  have  his  brilliant  and  congenial 
place  and  prospects  at  the  bar  thus  inter 
fered  with,  we  can  see  now  what  an  admi 
rable  preparation  all  this  was  for  the  great 
station,  which,  a  little  later,  to  the  endless 
benefit  of  his  country,  he  was  destined  to 
fill.  What  drove  him  into  office  so  often 
was,  in  a  great  degree,  that  delightful  and 
remarkable  combination  of  qualities  which 
made  everybody  love  and  trust  him,  even 
his  political  adversaries,  so  that  he  could  be 
chosen  when  no  one  else  of  his  party  was 
available.  In  this  way,  happily  for  his 
country,  he  was  led  to  consider,  early  and 
deeply,  those  difficult  problems  of  govern 
ment  that  distressed  the  country  in  the  dark 
period  after  the  close  of  the  war,  and  during 
the  first  dozen  years  of  the  Federal  Consti 
tution. 

As  regards  the  effect  of  his  earlier  experi- 


BEFORE  BECOMING  CHIEF  JUSTICE  23 

ence  in  enlarging  the  circle  of  a  patriot's 
thoughts  and  affections,  he  himself  has  said : 
"  I  am  disposed  to  ascribe  my  devotion  toN 
the  Union,  and  to  a  government  competent 
to  its  preservation,  at  least  as  much  to  cas 
ual  circumstances  as  to  judgment.  I  had 
grown  up  at  a  time  .  .  .  when  the  maxim, 
4  United  we  stand,  divided  we  fall,'  was  the 
maxim  of  every  orthodox  American ;  and  I 
had  imbibed  these  sentiments  so  thoroughly 
that  they  constituted  a  part  of  my  being.  I 
carried  them  with  me  into  the  army,  where 
I  found  myself  associated  with  brave  men 
from  different  States  who  were  risking  life 
and  everything  valuable  in  a  common  cause  ; 
.  .  .  and  where  I  was  confirmed  in  the  habit 
of  considering  America  as  my  country  and 
Congress  as  my  government."  It  was  this 
confirmed  "  habit  of  considering  America  as 
my  country,"  communicated  by  him  to  his 
countrymen,  which  enabled  them  to  carry 
through  the  great  struggle  of  forty  years 
ago,  and  to  save  for  us  all,  North  and  South, 
the  inestimable  treasure  of  the  Union. 

After   Marshall's  marriage,  in   January, 


t 


24  JOHN  MARSHALL 

1783,  he  made  Richmond  his  home  for  the 
rest  of  his  life.  It  was  still  a  little  town, 
but  it  had  lately  become  the  capital  of  the 
State,  and  the  strongest  men  at  the  bar  grad 
ually  gathered  there.  Marshall  met  them 
all.  One  has  only  to  look  at  the  law  reports 
of  Call  and  Washington  to  see  the  place 
that  he  won.  He  is  found  in  most  of  the 
important  cases.  In  his  time  no  man's  name 
occurs  oftener,  probably  none  so  often. 

The  earliest  case  in  which  the  printed  re 
ports  show  his  name  is  that  of  Hite  v.  Fair 
fax  (4  Call's  Reports,  42),  in  May,  1786, 
and  his  argument  seems  to  be  fully  reported. 
It  was  a  very  important  case,  and  Marshall 
represented  tenants  of  Lord  Fairfax.  There 
were  conflicting  grants  on  the  famous  "  North 
ern  Neck"  of  Virginia,  an  extensive  region 
given  by  the  crown  to  Lord  Fairfax's  ances 
tor,  whose  boundaries  had  been  in  dispute. 
It  comprised  the  land  between  the  Potomac 
and  the  Rappahannock,  "  within  the  heads  of 
the  rivers  .  .  .  the  courses  of  the  said  rivers, 
as  they  are  commonly  called  or  known  by 
the  inhabitants  and  descriptions  of  those 


BEFORE  BECOMING  CHIEF  JUSTICE   25 

parts,  and  Chesapeake  Bay,  together  with 
the  rivers  themselves  and  all  the  islands 
within  the  banks  of  the  rivers."  This  de 
scription  was  finally  admitted  by  the  crown 
(in  1745)  to  include  all  the  land  between 
the  head  springs  of  the  Potomac  and  those 
of  the  south  branch  of  the  Rappahaunock. 
Bishop  Meade1  describes  it  as  the  region 
which,  beginning  on  the  Chesapeake  Bay, 
lies  between  the  Potomac  and  Rappahan- 
nock  rivers,  and  crossing  the  Blue  Ridge, 
or  passing  through  it  with  the  Potomac  at 
Harper's  Ferry,  extends  with  that  river  to 
the  heads  thereof  in  the  Alleghany  Moun 
tains,  and  thence  by  a  straight  line  crosses 
the  North  Mountain  and  Blue  Ridge  at  the 
headwaters  of  the  Rappahannock,  .  .  .  the 
most  fertile  part  of  Virginia." 

Marshall  had  now  to  meet  a  total  denial 
of  Lord  Fairfax's  title.  His  argument  of 
ten  or  twelve  pages  shows  already  the  char 
acteristics,  the  cogency,  clear  method,  and 
neat  precision  of  thought  and  speech,  by 
which  his  later  work  was  marked.  "  I  had 

1  Old  Churches  and  Families  of  Virginia,  ii.  105. 


26  JOHN  MARSHALL 

conceived,"  he  says,  "  that  it  was  not  more 
certain  that  there  was  such  a  tract  of 
country  as  the  Northern  Neck  than  that 
Lord  Fairfax  was  the  proprietor  of  it.  ... 
Gentlemen  cannot  suppose  that  a  grant 
made  by  the  crown  to  the  ancestor  for  ser 
vices  rendered  or  even  for  affection  can  be 
invalidated  in  the  hands  of  an  heir  because 
these  services  and  affections  are  forgotten, 
or  because  the  thing  granted  has,  from  causes 
which  must  have  been  foreseen,  become 
more  valuable  than  when  it  was  given.  And 
if  it  could  not  be  invalidated  in  the  hands 
of  the  heir,  much  less  can  it  be  in  the  hands 
of  the  purchaser."  As  regards  the  con 
struction  of  the  grant :  "  Whether  Lord 
Fairfax's  grant  extended  originally  beyond 
the  forks  of  the  rivers  or  not,  will  no  more 
admit  of  argument  than  it  ever  could  have 
admitted  of  a  doubt.  But  whether  it  should 
be  bounded  by  the  north  or  south  fork  of  the 
Rappahannock  was  a  question  involved  in 
more  uncertainty.  ...  It  is,  however,  no 
longer  a  question,  for  it  has  been  decided. 
.  .  .  That  decision  did  not  create  or  extend 


BEFORE  BECOMING  CHIEF  JUSTICE  27 

Lord  Fairfax's  right,  but  determined  what 
the  right  originally  was.  The  bounds  of 
many  patents  are  doubtful ;  the  extent  of 
many  titles  uncertain :  but  when  a  decision 
is  once  made  on  them,  it  removes  the  doubt 
and  ascertains  what  the  original  boundaries 
were."  In  reference  to  a  personal  appeal 
in  behalf  of  certain  settlers,  he  says,  "  Those 
who  explore  and  settle  new  countries  are 
generally  bold,  hardy,  and  adventurous  men, 
whose  minds  as  well  as  bodies  are  fitted  to 
encounter  danger  and  fatigue ;  their  object 
is  the  acquisition  of  property,  and  they  gen 
erally  succeed.  None  will  say  that  the 
complainants  have  failed ;  and  if  their  hard 
ships  and  dangers  have  any  weight  in  the 
court,  the  defendants  share  in  them,  and 
have  equal  claim  to  countenance ;  for  they, 
too,  with  humbler  views  and  less  extensive 
prospects,  have  explored,  bled  for,  and  set 
tled  a  till  then  uncultivated  desert." 

Compare  with  this  the  like  simple  felicity 
and  exactness  of  expression  in  his  last  re 
ported  utterance  in  court,  when  he  was  clos 
ing  his  great  career  as  Chief  Justice  of  the 


28  JOHN  MARSHALL 

United  States,  forty-nine  years  later.  He  is 
refusing  a  motion  for  delay :  "  The  court  has 
taken  into  its  serious  and  anxious  considera 
tion  the  motion  made  on  the  part  of  the 
government  to  continue  the  cause  of  Mitchel 
v.  The  United  States  to  the  next  term. 
Though  the  hope  of  deciding  causes  to  the 
mutual  satisfaction  of  parties  would  be 
chimerical,  that  of  convincing  them  that 
the  case  has  been  fully  and  fairly  con 
sidered,  that  due  attention  has  been  given 
to  the  arguments  of  counsel,  and  that  the 
best  judgment  of  the  court  has  been  exer 
cised  on  the  case,  may  be  sometimes  in 
dulged.  Even  this  is  not  always  attainable. 
In  the  excitement  produced  by  ardent  con 
troversy,  gentlemen  view  the  same  object 
through  such  different  media  that  minds 
not  unfrequently  receive  therefrom  pre 
cisely  opposite  impressions.  The  court,  how 
ever,  must  see  with  its  own  eyes,  and  exer 
cise  its  own  judgment  guided  by  its  own 
reason.  .  .  .  The  opinion  of  the  court  will 
be  delivered." 1 

1  It  was  given  by  another  judge. 


BEFORE  BECOMING  CHIEF  JUSTICE  29 

At  first,  he  had  brought  from  the  army, 
and  from  his  home  on  the  frontier,  simple 
and  rustic^ways  which  surprised  some  per 
sons  at  Richmond,  whose  conception  of 
greatness  was  associated  with  very  differ 
ent  models  of  dress  and  behavior.  "  He 
was  one  morning  strolling,"  we  are  told, 
"  through  the  streets  of  Richmond,  attired 
in  a  plain  linen  roundabout  and  shorts,  with 
his  hat  under  his  arm,  from  which  he  was 
eating  cherries,  when  he  stopped  in  the 
porch  of  the  Eagle  Hotel,  indulged  in  a  lit 
tle  pleasantry  with  the  landlord,  and  then 
passed  on."  A  gentleman  from  the  country 
was  present,  who  had  a  case  coming  on  be 
fore  the  Court  of  Appeals,  and  was  referred 
by  the  landlord  to  Marshall  as  the  best  law 
yer  to  employ.  But  "  the  careless,  languid 
air  "  of  Marshall  had  so  prejudiced  the  man 
that  he  refused  to  employ  him.  The  clerk, 
when  this  client  entered  the  court-room,  also 
recommended  Marshall,  but  the  other  would 
have  none  of  him.  A  venerable-looking 

O 

lawyer,  with   powdered  wig   and    in  black 
cloth,  soon  entered,  and  the  gentleman  en- 


30  JOHN  MARSHALL 

gaged  him.  In  the  first  case  that  came  up, 
this  man  and  Marshall  spoke  on  opposite 
sides.  The  gentleman  listened,  saw  his  mis 
take,  and  secured  Marshall  at  once  ;  frankly 
telling  him  the  whole  story,  and  adding  that 
while  he  had  come  with  one  hundred  dollars 
to  pay  his  lawyer,  he  had  but  five  dollars 
left.  Marshall  good-naturedly  took  this,  and 
helped  in  the  case.  In  the  Virginia  Federal 
Convention  of  1788,  at  the  age  of  thirty- 
three,  he  is  described,  rising  after  Monroe 
had  spoken,  as  "a  tall  young  man,  slovenly 
dressed  in  loose  summer  apparel.  .  .  .  His 
manners,  like  those  of  Monroe,  were  in 
strange  contrast  with  those  of  Edmund  Ran 
dolph  or  of  Grayson." 

In  such  stories  as  these,  one  is  reminded, 
as  he  is  often  reminded,  of  a  resemblance 
between  Marshall  and  Lincoln.  Very  dif 
ferent  men  they  were,  but  both  thorough 
Americans,  with  unborrowed  character  and 
manners,  and  a  lifelong  flavor  derived  from 
no  other  soil. 

At  the  height  of  Marshall's  reputation,  in 
1797,  a  French  writer,  who  had  visited  Rich- 


BEFORE  BECOMING  CHIEF  JUSTICE  31 

moncl  lately,  in  speaking  of  Edmund  Ran 
dolph,  says,  "  He  has  a  great  practice,  and 
stands,  in  that  respect,  nearly  on  a  par  with 
Mr.  J.  Marshall,  the  most  esteemed  and 
celebrated  counselor  of  this  town."  He 
mentions  Marshall's  annual  income  as  being 
four  or  five  thousand  dollars.  "  Even  by  his 
friends,"  it  is  added,  "  he  is  taxed  with  some 
little  propensity  to  indolence,  but  he  never 
theless  displays  great  superiority  when  he 
applies  his  mind  to  business."  Another 
contemporary,  who  praises  his  force  and  elo 
quence  in  speaking,  yet  says :  "It  is  diffi 
cult  to  rouse  his  faculties.  He  begins  with 
reluctance,  hesitation,  and  vacancy  of  eye. 
.  .  .  He  reminds  one  of  some  great  bird, 
which  flounders  on  the  earth  for  a  while  be 
fore  it  acquires  impetus  to  sustain  its  soar 
ing  flight."  And  finally,  William  Wirt, 
who  was  seventeen  years  Marshall's  junior, 
and  came  to  the  bar  in  1792,  when  Marshall 
was  nearly  at  the  head  of  it,  writing  anony 
mously  in  1804,  describes  him  as  one,  "  who, 
without  the  advantage  of  person,  voice,  atti 
tude,  gesture,  or  any  of  the  ornaments  of  an 


32  JOHN  MARSHALL 

orator,  deserves  to  be  considered  as  one  of 
the  most  eloquent  men  in  the  world."  He 
\  attributes  to  him  "  one  original  and  almost 
supernatural  faculty,  ...  of  developing  a 
subject  by  a  single  glance  of  his  mind.  .  .  . 
His  eyes  do  not  fly  over  a  landscape  and 
take  in  its  various  objects  with  more  prompt 
itude  and  facility  than  his  mind  embraces 
and  analyzes  the  most  complex  subject.  .  .  . 
All  his  eloquence  consists  in  the  apparently 
deep  self-conviction  and  the  emphatic  ear- 
\  nestness  and  energy  of  his  style,  the  close  and 
logical  connection  of  his  thoughts,  and  the 
easy  gradations  by  which  he  opens  his  lights 
on  the  attentive  minds  of  his  hearers." 

In  1789  he  declined  the  office  of  District 
Attorney  of  the  United  States  at  Richmond,1 
in  1795  that  of  Attorney-General  of  the 
United  States,  and  in  1796  that  of  Minister 
to  France,  all  offered  him  by  Washington. 
When  President  Adams  persuaded  him,  in 
1797,  to  go,  with  Pinckney  and  Gerry,  as 

1  Mr.  Justice  Gray  preserves  this  fact  in  his  address  on 
Mai-shall.  His  commission  bore  the  same  date  with  that 
of  Chief  Justice  Jay,  September  20, 1789,  —  two  days  after 
the  approval  of  the  Judiciary  Act. 


BEFORE  BECOMING  CHIEF  JUSTICE  33 

envoy  to  France,  he  wrote  to  Gerry  of 
"  General  Marshall  "  (as  he  was  then  called, 
from  his  rank  of  brigadier  general,  since 
1793,  in  the  Virginia  militia),  "  He  is  a 
plain  man,  very  sensible,  cautious,  guarded, 
and  learned  in  the  law  of  nations."  The 
extraordinary  details  of  that  unsuccessful 
six  months'  attempt  to  come  to  terms  with 
France  are  found  in  Marshall's  very  able 
dispatches  and  in  the  diary  which  he  kept ; l 
for,  with  the  instinct  of  a  man  of  affairs,  he 
failed  not  to  remember,  with  Thomas  Gray, 
that  "  a  note  is  worth  a  cartload  of  recollec 
tions."  His  own  part  in  the  business  was 
marked  by  great  moderation  and  ability; 
and  on  his  return,  in  1798,  he  was  received 
at  Philadelphia  with  remarkable  demonstra 
tions  and  the  utmost  enthusiasm.  A  corre 
spondent  of  Rufus  King,  writing  from  New 
York  in  July  of  that  year,  says,  "  No  two 
men  can  be  more  beloved  and  honored  than 
Pinckney  and  Marshall ;  "  and  again  in  No 
vember  :  "  Saving  General  Washington,  I 
believe  the  President,  Pinckney,  and  Mar- 
1  See  Wait's  State  Papers,  iii.  165-304. 


34  JOHN  MARSHALL 

shall  are  the  most  popular  characters  now  in 
our  country.  There  is  a  certain  something 
in  the  correspondence  of  Pinckney  and  Mar 
shall  .  .  .  that  has  united  all  heads  and 
hearts  in  their  eulogy."  It  is  understood 
that  the  American  side  of  this  correspond 
ence  was  by  Marshall.  Gerry  had  allowed 
himself  in  a  measure  to  be  detached  by  the 
Directory  from  his  associates,  to  their  great 
displeasure.  With  them,  in  important  re 
spects,  he  disagreed. 

Among  those  who  paid  their  respects  to 
Marshall,  on  his  return  from  France,  was 
Thomas  Jefferson,  the  Vice-President,  whose 
correspondence  shows  him  at  the  time  ex 
pressing  the  most  unflattering  opinion  of  the 
envoys.  Jefferson  wrote  to  Marshall  the  fol 
lowing  note.  "  In  after  years,"  says  Mrs. 
Hardy,  one  of  Marshall's  descendants,1  "the 
Chief  Justice  frequently  laughed  over  it, 
saying,  4  Mr.  Jefferson  came  very  near  tell 
ing  me  the  truth;  the  added  un  to  lucky • 
policy  alone  demanded.' "  The  note  ran 
thus  :  "  Thos.  Jefferson  presents  his  compli- 
1  The  Green  Bag,  viii.  482. 


BEFORE  BECOMING  CHIEF  JUSTICE  35 

ments  to  General  Marshall.  He  Lad  the 
honor  of  calling  at  his  lodgings  twice  this 
morning,  but  was  so  plucky  as  to  find  that 
he  was  out  on  both  occasions.  He  wished  to 
have  expressed  in  person  his  regret  that  a 
pre-engagement  for  to-day,  which  could  not 
be  dispensed  with,  would  prevent  him  the 
satisfaction  of  dining  in  company  with  Genl. 
Marshall,  and,  therefore,  begs  leave  to  place 
here  the  expressions  of  that  respect  which  in 
company  with  his  fellow-citizens  he  bears  him. 

"  Genl.  Marshall, 

at  Oeller's  Hotel,  June  23d,  1798." 

In  1798  Adams  offered  to  Marshall  the 
seat  on  the  Supreme  Bench,  made  vacant  by 
the  death  of  James  Wilson.  He  declined 
it ;  and  it  went  to  his  old  associate  at  Wil 
liam  and  Mary  College,  Bushrod  Washing 
ton.  Marshall  did  yield,  however,  to  General 
Washington's  urgent  request  to  stand  for 
Congress  that  year.  He  held  out  long 
against  Washington's  arguments,  and  only 
yielded,  at  last,  when  that  venerated  man 
called  attention  to  his  own  recent  sacrifice 
in  accepting  the  unwelcome  place  of  lieu- 


36  JOHN  MARSHALL 

tenant-general  of  the  army.  When  that 
went  into  the  scale  it  was  too  much.  Mar 
shall  was  then  on  a  visit  to  Mount  Vernon, 
whither  he  had  been  invited  in  August  or 
September,  in  company  with  Washington's 
nephew,  the  coming  judge. 

On  their  way  to  Mount  Vernon,  the  two 
travelers  met  with  a  misadventure  which 
gave  great  amusement  to  Washington,  and 
of  which  lie  enjoyed  telling  his  friends. 
They  came  on  horseback,  and  carried  but 
one  pair  of  saddlebags,  each  using  one  side. 
Arriving  thoroughly  drenched  by  rain,  they 
were  shown  to  a  chamber  to  change  their 
garments.  One  opened  his  side  of  the  bags 
and  drew  forth  a  black  bottle  of  whiskey. 
He  insisted  that  he  had  opened  his  compan 
ion's  repository.  Unlocking  the  other  side, 
they  found  a  big  twist  of  tobacco,  some  corn 
bread,  and  the  equipment  of  a  pack-saddle. 
They  had  exchanged  saddlebags  with  some 
traveler,  and  now  had  to  appear  in  a  ludi 
crous  misfit  of  borrowed  clothes.1 

1  Paulding's  Life  of  Washington,  ii.  191 ;  LippincotCs 
Magazine,  ii.  624,  625. 


BEFORE  BECOMING  CHIEF  JUSTICE  37 

The  election  of  Marshall  to  Congress  ex 
cited  great  interest.1  Washington  heartily  \ 
rejoiced  in  it.  Jefferson,  on  the  other  hand?  /' 
remarked  that  while  Marshall  might  trouble 
the  Republicans  somewhat,  yet  he  would  now 
be  unmasked.  He  had  been  popular  with 
the  mass  of  the  people,  Jefferson  said,  from 
his  "  lax,  lounging  manners,"  and  with  wiser 
men  through  a  "  profound  hypocrisy."  But 
now  his  British  principles  would  stand  re 
vealed. 

The  New  England  Federalists  were  very 
curious  about  him ;  they  had  been  alarmed 
and  outraged,  during  the  campaign,  by_his 
expressing  opposition  to  the  alien  and  sedi- 
Jjion  laws ;  but  they  were  much  impressed 
by  him.  Theodore  Sedgwick  wrote  to  Ruf  us 

1  In  an  amusing  account  of  this  election  (Munford's 
The  Two  Parsons),  we  are  told  that  the  sheriff  presided, 
with  the  two  candidates,  Marshall  and  John  Clopton, 
seated  on  the  justice's  bench.  The  voter,  being-  asked 
for  whom  he  voted,  gave  the  name  of  his  candidate  ;  and 
the  latter  thanked  him  ;  e.  g.,  "  Your  vote  is  appreciated, 
sir,"  said  Marshall  to  his  friend  Parson  Blair.  For  an 
account  of  the  same  method  of  conducting  elections  in 
Virginia  at  a  later  period,  see  John  S.  Wise's  The  End 
of  an  Era. 


38  JOHN  MARSHALL 

King  that  he  had  "  great  powers,  and  much 
dexterity  in  the  application  of  them.  .  .  . 
We  can  do  nothing  without  him.'*  But 
Sedgwick  wished  that  "his  education  had 
been  on  the  other  side  of  the  Delaware." 
George  Cabot  wrote  to  King :  "  General 
Marshall  is  a  leader.  .  .  .  But  you  see  in 
him  the  faults  of  a  Virginian.  .  .  .  He  thinks 
too  much  of  that  State,  and  he  expects  that 
the  world  will  be  governed  by  rules  of  logic." 
But  Cabot  hopes  to  see  him  improve,  and 
adds,  "He  seems  calculated  to  act  a  great 
part."  In  the  end,  the  Northern  Federalists 
were  disappointed  in  finding  him  too  mod 
erate.  He  held  the  place  of  leader  of  the 
House,  and  passed  into  the  cabinet  in  May, 
1800.  On  January  31,  1801,  he  was  com 
missioned  as  Chief  Justice. 


CHAPTER  II 

ARGUMENTS  AND  SPEECHES  ;   LIFE  OF  WASH 
INGTON  ;    RELATIONS   WITH   JEFFERSON 

THERE  is  little  room  for  quotations  from 
Marshall's  speeches  or  dispatches. 

Some  reference  has  already  been  made  to 
his  earliest  reported  argument  in  court,  in 
1786.  In  the  Virginia  Federal  Convention, 
in  1788,  Marshall's  principal  speeches  re 
lated  to  the  subjects  of  taxation,  the  militia,  , 
and  the  judiciary.  These,  so  far  as  pre 
served,  are  found  in  the  third  volume  of 
Elliot's  Debates,  and  in  Dr.  Grigsby's  very  ! 
interesting  History  of  that  Convention,  in  ' 
the  tenth  volume  of  the  "  Virginia  Historical 
Collections."  Nothing  remains  of  a  famous 
speech  in  support  of  Jay's  treaty,  at  a  public 
meeting  in  Richmond  in  1795.  A  summary 
of  his  strong  but  unsuccessful  argument  in 
1796,  in  the  case  of  Ware  v.  Hylton  (3 
Dallas  199),  as  to  the  claims  of  British 


40  JOHN  MARSHALL 

creditors,  his  only  case  before  the  Supreme 
Court  of  the  United  States,  is  preserved  in 
the  volume  of  reports.  This  argument  at 
tracted  much  attention  among  the  statesmen 
at  Philadelphia.  "  I  then  became  acquainted," 
he  wrote  to  a  friend,  "  with  Mr.  Cabot,  Mr. 
Ames,  Mr.  ]£exter,  and  Mr.  Sedgwick  of 
Massachusetts,  Mr.  Wadsworth  of  Con 
necticut,  and  Mr.  King  of  New  York.  .  .  . 
I  was  particularly  intimate  with  Mr.  Ames.'* 

After  Washington's  death  in  1799,  Mar 
shall,  in  a  short  and  well-known  speech, 
moved  the  resolution  of  the  House  of  Repre 
sentatives. 

A  little  afterwards  he  made  a  great  and 
admirably  thorough  address  in  a  matter  which 
then  deeply  affected  the  public  mind ;  from 
this,  his  greatest  public  speech,1  a  quotation 
is  given  below.  It  was  made  March  4, 1800, 

1  "The  masterly  and  conclusive  argument  of  John 
Marshall  in  the  House  of  Representatives.  8  Stat.  120; 
Wharton's  State  Trials,  392 ;  Bee  [Reports] ,  280 ;  5  Wheat, 
appendix  3.' '  —  Gray,  J.,  speaking1  for  the  Supreme  Court 
of  the  United  States,  in  Fong  Yue  Ting  v.  U.  S.,  149  U.  S. 
098,  714.  This  speech  is  also  found  in  Moore's  American 
Eloquence,  ii.  7. 


ARGUMENTS  AND  SPEECHES        41 

in  defense  of  the  President's  action  in  the 
case  of  Thomas  Nash,  alias  Jonathan  Hob- 
bins.  This  person,  a  British  subject,  but 
claiming  to  be  an  American  citizen,  and  to 
have  been  impressed  into  the  British  navy, 
was  charged  with  piracy  and  murder  on 
board  a  British  ship  of  war  in  1791.  Being 
found  in  Charleston,  S.  C.,  he  was  arrested 
in  1799,  at  the  instance  of  the  British 
consul,  and  held  to  await  an  application 
for  his  extradition  under  article  27  of  the 
treaty  with  Great  Britain  of  1795.  That 
article  bound  the  two  countries  reciprocally 
to  deliver  up,  on  request  of  the  other,  per 
sons  charged  with  murder  committed  within 
the  jurisdiction  of  that  other.  Evidence  of 
criminality  was  first  to  be  furnished,  such  as 
would  justify  commitment  for  trial  on  the 
same  charge  in  the  country  where  the  ac 
cused  was  found. 

An  application  for  extradition  was  made 
to  the  federal  authorities  in  Charleston,  but 
at  their  suggestion  this  was  transferred  to 
the  President,  through  the  Secretary  of 
State.  The  Secretary  informed  Bee,  the 


42  JOHN  MARSHALL 

United  States  District  Judge,  of  the  Presi 
dent's  "  advice  and  request "  that  Nash  should 
be  delivered  up,  at  the  same  time  referring 
to  the  clause  in  the  treaty  as  to  the  neces 
sary  evidence  of  criminality.1  The  judge  on 
July  1,  1799,  informed  the  Secretary  that 
he  had  notified  the  British  consul  that  on 
the  production  of  such  evidence,  the  prisoner 
would  be  delivered  up  when  the  consul  was 
ready  to  receive  him.  The  delivery  was 
made  ;  and  on  September  9  of  the  same  year, 
the  British  admiral  was  able  to  inform  the 
British  Minister  that  Nash  "  has  been  tried 
at  a  court  martial,  and  sentenced  to  suffer 
death,  and  afterwards  hung  in  chains ;  which 
sentence  has  been  put  into  execution.'* 

These  events  were  used  with  great  effect 
by  the  political  opponents  of  the  administra 
tion.  When  Congress  met,  the  President 
was  called  upon  by  the  House  of  Repre- 

1  The  President  had  written  to  the  Secretary  of  State 
from  Quincy,  May  21,  1799 :  "  How  far  the  President  of 
the  United  States  would  be  justified  in  directing  the  judge 
to  deliver  up  the  offender  is  not  clear.  I  have  no  objec 
tion  to  advise,  and  request  him  to  do  so."  Wharton's 
State  Trials,  418. 


ARGUMENTS  AND  SPEECHES         43 

sentatives  for  the  papers  relating  to  them ; 
and  when  they  were  sent  in,  Edward  Liv 
ingston,  of  New  York,  submitted  resolutions 
condemning  the  action  of  the  executive,  on 
the  ground  that  the  determination  of  the 
questions  involved  in  the  case  "  are  all  mat 
ters  exclusively  for  judicial  inquiry ;  "  that 
the  acts  of  the  President  "  are  a  dangerous 
interference  of  the  executive  with  judicial 
decisions ;  "  and  that  the  compliance  of  the 
district  judge  "  is  a  sacrifice  of  the  constitu 
tional  independence  of  the  judicial  power." 
After  a  full  debate,  these  resolutions  were 
negatived  by  a  decided  vote.  Marshall's 
very  able  argument  vindicated  the  action 
taken,  and  laid  down  principles  which  have 
ever  since  governed  the  course  of  the  gov 
ernment  in  such  cases. 

The  following  passages  will  afford  a  speci 
men  of  the  style  and  method  of  this  address, 
a  style  and  method  which  were  characteristic 
of  all  Marshall's  work :  — 

"  The  same  argument  applies  to  the  ob 
servations  on  the  seventh  article  of  the 
amendments  to  the  Constitution.  That  arti- 


44  JOHN  MARSHALL 

cle  relates  only  to  trials  in  the  courts  of  the 
United  States,  and  not  to  the  performance 
of  a  contract  for  the  delivery  of  a  murderer 
not  triable  in  those  courts. 

"  In  this  part  of  the  argument,  the  gentle 
man  from  New  York  [Mr.  Livingston]  has 
presented  a  dilemma,  of  a  very  wonderful 
structure  indeed.  He  says  that  the  offense 
of  Thomas  Nash  was  either  a  crime  or  not  a 
crime.  If  it  was  a  crime,  the  constitutional 
mode  of  punishment  ought  to  have  been 
observed;  if  it  was  not  a  crime,  he  ought 
not  to  have  been  delivered  up  to  a  foreign 
government,  where  his  punishment  was  in 
evitable. 

"  It  has  escaped  the  observation  of  that 
gentleman  that  if  the  murder  committed  by 
Thomas  Nash  was  a  crime,  yet  it  was  not  a 
crime  provided  for  by  the  Constitution  or 
triable  in  the  courts  of  the  United  States ; 
and  that  if  it  was  not  a  crime,  yet  it  is  the 
precise  case  in  which  his  surrender  was  stip 
ulated  by  treaty.  Of  this  extraordinary 
dilemma,  the  gentleman  from  New  York  is 
himself  perfectly  at  liberty  to  retain  either 
form. 


ARGUMENTS  AND  SPEECHES          45 

"  He  has  chosen  to  consider  it  as  a  crime, 
and  says  it  has  been  made  a  crime  by  treaty, 
and  is  punished  by  sending  the  offender  out 
of  the  country.  The  gentleman  is  incorrect 
in  every  part  of  his  statement.  Murder  on 
board  a  British  frigate  is  not  a  crime  created 
by  treaty.  It  would  have  been  a  crime  of 
precisely  the  same  magnitude  had  the  treaty 
never  been  formed.  It  is  not  punished  by 
sending  the  offender  out  of  the  United 
States.  The  experience  of  the  unfortunate 
criminal,  who  was  hung  and  gibbeted,  evinced 
to  him  that  the  punishment  of  his  crime  was 
of  a  much  more  serious  nature  than  mere 
banishment  from  the  United  States. 

"  The  gentleman  from  Pennsylvania  [Mr. 
Gallatin]  and  the  gentleman  from  Virginia 
[Mr.  Nicholas]  have  both  contended  that 
this  was  a  case  proper  for  the  decision  of 
the  courts,  because  points  of  law  occurred, 
and  points  of  law  must  have  been  decided  in 
its  determination.  The  points  of  law  which 
must  have  been  decided  are  stated  by  the 
gentleman  from  Pennsylvania  to  be,  first,  a 
question  whether  the  offense  was  committed 


46  JOHN  MARSHALL 

within  the  British  jurisdiction ;  and,  sec 
ondly,  whether  the  crime  charged  was  com 
prehended  within  the  treaty. 

4 '  It  is  true,  sir,  these  points  of  law  must 
have  occurred,  and  must  have  been  decided, 
but  it  by  no  means  follows  that  they  could 
only  have  been  decided  in  court.  A  variety 
of  legal  questions  must  present  themselves 
in  the  performance  of  every  executive  duty, 
but  these  questions  are  not  therefore  to  be 
decided  in  court.  Whether  a  patent  for 
land  shall  issue  or  not  is  always  a  question 
of  law,  but  not  a  question  which  must  neces 
sarily  be  carried  into  court.  The  gentleman 
from  Pennsylvania  seems  to  have  permitted 
himself  to  have  been  misled  by  the  misrepre 
sentations  of  the  Constitution  made  in  the 
resolutions  of  the  gentleman  from  New 
York ;  and,  in  consequence  of  being  so  mis 
led,  his  observations  have  the  appearance  of 
endeavoring  to  fit  the  Constitution  to  his 
arguments,  instead  of  adapting  his  argu 
ments  to  the  Constitution. 

"  When  the  gentleman  has  proved  that 
these  are  questions  of  law,  and  that  they 


ARGUMENTS  AND  SPEECHES        47 

must  have  been  decided  by  the  President,  he 
has  not  advanced  a  single  step  towards  prov 
ing  that  they  were  improper  for  executive 
decision.  The  question  whether  vessels  cap 
tured  within  three  miles  of  the  American 
coast,  or  by  privateers  fitted  out  in  the 
American  ports,  were  legally  captured  or 
not,  and  whether  the  American  government, 
is  bound  to  restore  them,  if  in  its  power, 
were  questions  of  law,  but  they  were  ques 
tions  of  political  law,  proper  to  be  decided, 
and  they  were  decided  by  the  executive,  and 
not  by  the  courts.  The  casus  foederis  of 
the  guaranty  was  a  question  of  law,  but  no 
man  could  have  hazarded  the  opinion  that 
such  a  question  must  be  carried  into  court, 
and  can  only  be  there  decided.  So  the 
casus  fcederis,  under  the  twenty-seventh 
article  of  the  treaty  with  Britain,  is  a  ques 
tion  of  law,  but  of  political  law.  The  ques 
tion  to  be  decided  is,  whether  the  particular 
case  proposed  be  one  in  which  the  nation 
has  bound  itself  to  act,  and  this  is  a  question 
depending  on  principles  never  submitted  to 
courts.  If  murder  should  be  committed 


48  JOHN  MARSHALL 

within  the  United  States,  and  the  murderer 
should  seek  an  asylum  in  Britain,  the  ques 
tion  whether  the  casus  fcederis,  of  the 
twenty-seventh  article  had  occurred,  so  that 
his  delivery  ought  to  be  demanded,  would 
be  a  question  of  law,  but  no  man  would  say 
it  was  a  question  which  ought  to  be  decided 
in  the  courts. 

"  When,  therefore,  the  gentleman  from 
Pennsylvania  has -established  that,  in  deliver 
ing  up  Thomas  Nash,  points  of  law  were 
decided  by  the  President,  he  has  established 
a  position  which  in  no  degree  whatever  aids 
his  argument.  The  case  is  in  its  nature  a 
national  demand,  made  upon  the  nation. 
The  parties  are  the  two  nations.  They  can 
not  come  into  court  to  litigate  their  claims, 

nor  can  a  court  decide  on  them.     Of  conse- 

. 
quence,  the  demand  is  not  a  case  for  judicial 

cognizance.  The  President  is  the  sole  organ 
of  the  nation  in  its  external  relations,  and 
its  sole  representative  with  foreign  nations. 
Of  consequence,  the  demand  of  a  foreign 
nation  can  only  be  made  on  him.  .  .  . 

"  The  treaty,  which  is  a  law,  enjoins  the 


ARGUMENTS  AND  SPEECHES        49 

performance  of  a  particular  object.  The 
person  who  is  to  perform  this  object  is 
marked  out  by  the  Constitution,  since  the 
person  is  named  who  conducts  the  foreign 
intercourse  and  is  to  take  care  that  the  laws 
be  faithfully  executed.  The  means  by  which 
it  is  to  be  performed,  the  force  of  the  nation, 
are  in  the  hands  of  this  person.  Ought  not 
this  person  to  perform  the  object,  although 
the  particular  mode  of  using  the  means  has 
not  been  prescribed?  Congress,  unques 
tionably,  may  prescribe  the  mode,  and  Con 
gress  may  devolve  on  others  the  whole  exe 
cution  of  the  contract ;  but,  till  this  is  done, 
it  seems  the  duty  of  the  executive  depart 
ment  to  execute  the  contract  by  any  means 
it  possesses. 

"  The  gentleman  from  Pennsylvania  con 
tends  that,  although  this  should  be  properly 
an  executive  duty,  yet  it  cannot  be  per 
formed  until  Congress  shall  direct  the  mode 
of  performance.  .  .  .  The  treaty  stipidating 
that  a  murderer  shall  be  delivered  up  to  jus 
tice  is  as  obligatory  as  an  act  of  Congress 
making  the  same  declaration.  If,  then, 


50  JOHN  MARSHALL 

there  was  an  act  of  Congress  in  the  words 
of  the  treaty,  declaring  that  a  person  who 
had  committed  murder  within  the  jurisdic 
tion  of  Britain,  and  sought  an  asylum  within 
the  territory  of  the  United  States,  should  be 
delivered  up  by  the  United  States,  on  the 
demand  of  his  Britannic  Majesty  and  such 
evidence  of  his  criminality  as  would  have 
justified  his  commitment  for  trial,  had  the 
offense  been  committed  here;  could  the 
President,  who  is  bound  to  execute  the  laws, 
have  justified  the  refusal  to  deliver  up  the 
criminal  by  saying  that  the  legislature  had 
totally  omitted  to  provide  for  the  case  ? 

"  The  executive  is  not  only  the  constitu 
tional  department,  but  seems  to  be  the 
proper  department  to  which  the  power  in 
question  may  most  wisely  and  most  safely  be 
confided.  ...  If,  at  any  time,  policy  may 
temper  the  strict  execution  of  the  contract, 
where  may  that  political  discretion  be  placed 
so  safely  as  in  the  department  whose  duty  it 
is  to  understand  precisely  the  state  of  the 
political  intercourse  and  connection  between 
the  United  States  and  foreign  nations,  to 


ARGUMENTS  AND  SPEECHES         51 

understand  the  manner  in  which  the  partic 
ular  stipulation  is  explained  and  performed 
by  foreign  nations,  and  to  understand  com 
pletely  the  state  of  the  Union  ?  " 

This  clear,  strong,  convincing  speech,  of 
which  I  have  quoted  but  a  small  portion, 
settled  the  question  then  in  dispute,  and  the 
principles  here  laid  down  have  controlled 
the  action  of  the  government  ever  since. 

Very  soon  after  entering  upon  his  duties 
as  Chief  Justice,  Marshall  undertook  to  write 
the  "  Life  of  Washington."  This  gave  him  a 
great  deal  of  trouble  and  mortification.  It 
proved  to  be  an  immense  labor ;  the  pub 
lishers  were  importunate,  and  he  was  driven 
into  print  before  he  was  ready.  The  result 
was  a  work  in  five  volumes,  appearing  from 
1802  to  1804,  full  of  the  most  valuable  and 
authentic  material,  well  repaying  perusal, 
yet  put  together  with  singular  lack  of  liter 
ary  skill,  and  in  many  ways  a  great  disap 
pointment.1  In  the  later  years  of  his  life, 

1  The  short  "  autobiography  "  before  referred  to  (ante, 
p.  10,  n.)  ends  thus:  "I   have  written   no  book   except 


52  JOHN  MARSHALL 

he  revised  it,  corrected  some  errors,  short 
ened  it,  and  published  it  in  three  volumes : 
one  of  them,  in  1824,  as  a  separate  prelim 
inary  history  of  the  colonial  period,  and  the 
other  two,  in  1834,  as  the  "  Life  of  Washing 
ton."  This  work,  in  its  original  form,  gave 
great  offense  to  Jefferson,  written,  as  it  was, 
from  the  point  of  view  of  a  constant  admirer 
and  supporter  of  the  policy  of  Washington  ; 
a  "  five  volume  libel,"  Jefferson  called  it. 

Jefferson  had  ludicrous  misconceptions  as 
to  Marshall's  real  character.  It  is  said  that 
after  Burr's  trial,  in  1807,  all  personal  in 
tercourse  between  them  ceased.1  Referring 
in  1810  to  the  "  batture "  case,  in  which 
Edward  Livingston  sued  him,  and  which 
was  to  come  before  Marshall,  Jefferson  says 
that  he  is  certain  what  the  result  of  the 
case  should  be,  but  nobody  can  tell  what  it 
will  be ;  for  "  the  Judge's  mind  [is]  of  that 
gloomy  malignity  which  will  never  let  him 
forego  the  opportunity  of  satiating  it  upon  a 

the  '  Life  of  Washington,'  which  was  executed   with  so 
much  precipitation  as  to  require  much  correction." 
1  Van  Santvoord,  Lives  of  the  Chief  Justices,  343,  n. 


ARGUMENTS  AND  SPEECHES         53 

victim.  .  .  .  And  to  whom  is  my  appeal? 
From  the  judge  in  Burr's  case  to  himself 
and  his  associate  justices  in  Marbury  v. 
Madison.  Not  exactly,  however.  I  observe 
old  Gushing  is  dead.  [Judge  Gushing  had 
died  a  fortnight  before.]  At  length,  then, 
we  have  a  chance  of  getting  a  Republican 
majority  in  the  Supreme  Judiciary."  And 
he  goes  on  to  express  his  confidence  in  the 
"  appointment  of  a  decided  Republican,  with 
nothing  equivocal  about  him." 

Who  was  this  decided  and  unequivocal 
Republican  to  be?  Jefferson  was  anxious 
about  it,  and  wrote  to  Madison,  suggesting 
Judge  Tyler,  of  Virginia,  as  a  candidate, 
and  reminding  the  President  of  Marshall's 
"  rancorous  hostility  to  his  country."  Who 
was  it,  in  fact,  that  was  appointed  ?  Who 
but  Joseph  Story !  —  a  Republican,  indeed, 
but  one  whom  Jefferson,  in  this  very  year, 
was  designating  as  a  "  pseudo-Republican," 
and  who  soon  became  Marshall's  warmest 
admirer  and  most  faithful  supporter. 


CHAPTER  III 

THE  BEGINNINGS  OF  THE  CHIEF  JUSTICE'S 
CAREER  ;  AMERICAN  CONSTITUTIONAL 
LAW;  MARBURY  V.  MADISON. 

MARSHALL'S  accession  to  the  bench  was 
marked  by  an  impressive  circumstance.  For 
ten  years  or  more,  he  alone  gave  all  the 
opinions  of  the  court  to  which  any  name 
was  attached,  except  where  the  case  came  up 
from  his  own  circuit,  or,  for  any  reason,  he 
did  not  sit.  In  the  very  few  cases  where 
opinions  were  given  by  the  other  justices,  it 
was  in  the  old  way,  seriatim,  —  the  method 
followed  before  Marshall  came  in,  as  it  was 
also  the  method  of  contemporary  English 
courts. 

Whatever  may  have  been  the  purpose  of 
the  Chief  Justice  in  introducing  this  usage, 
there  can  be  no  doubt  as  to  the  impression 
it  was  calculated  to  produce.  It  seemed,  all 
of  a  sudden,  to  give  to  the  judicial  depart- 


CONSTITUTIONAL  LAW  55 

ment  a  unity  like  that  of  the  executive,  to 
concentrate  the  whole  force  of  that  depart 
ment  in  its  chief,  and  to  reduce  the  side-jus 
tices  to  a  sort  of  cabinet  advisers.  In  the 
very  few  early  cases  where  there  was  ex 
pressed  dissent,  it  lost  much  of  its  impres- 
siveness,  when  announced,  as  it  sometimes 
was,  by  the  mouth  that  gave  the  opinion  of 
the  court. 

In  1812,  when  a  change  took  place,  the 
court  had  been  for  a  year  without  a  quorum. 
Moreover,  Judge  Story  had  just  come  to  the 
bench,  a  man  of  quite  too  exuberant  an  in 
tellect  and  temperament  to  work  well  as  a 
silent  side-judge.  We  remark,  also,  at  the 
beginning  of  that  term,  that  the  Chief  Jus 
tice  was  not  in  attendance,  having,  as  the 
reporter  tells  us,  "  received  an  injury  by  the 
oversetting  of  the  stage-coach  on  his  jour 
ney  from  Richmond."  And  it  may  be 
added  that  just  at  this  time  the  anxious 
prayer  of  Jefferson  was  answered,  and  a  ma 
jority  of  the  judges  were  Republicans.  From 
whatever  cause,  henceforward  there  was  a 
change  ;  and  without  returning  to  the  old 


56  JOHN  MARSHALL 

habit  of  seriatim  opinions,  the  side-judges 
had  their  turn,  as  they  do  now. 

In  most  of  Marshall's  opinions,  one  ob- 
\  serves  the  style  and  special  touch  of  a 
thoughtful  and  original  mind  ;  in  some  of 
them  the  powers  of  a  great  mind,  in  full  ac 
tivity.  His  cases  relating  to  international 
law,  as  I  am  assured  by  those  competent  to 
,  judge,  rank  with  the  best  there  are  in  the 
^  books.  As  regards  most  of  the  more  famil- 
,  iar  titles  of  the  law,  it  would  be  too  much 
to  claim  for  him  the  very  first  rank.  In 
that  region  he  is,  in  many  respects,  equaled 
or  surpassed  by  men  more  deeply  versed  in 
the  learning  and  technicalities  of  the  law,  in 
what  constitutes  that  "  artificial  perfection 
of  reason"  which  Coke  used  to  glorify  as 
far  transcending  any  man's  natural  reason, 
—  men  such  as  Story,  Kent,  or  Shaw,  or 
even  the  reformer,  Mansfield,  whom  he 
greatly  admired,  Eldon,  or  Blackburn.  But 
in  the  field  of  constitutional  law,  a  region 
not  open  to  an  English  lawyer,  —  and  es 
pecially  in  one  department  of  it,  that  relat 
ing  to  the  nature  and  scope  of  the  National 


CONSTITUTIONAL  LAW  57 

Constitution,  he  was  preeminent,  —  first, 
with  no  one  second.  It  is  hardly  possible, 
as  regards  this  part  of  the  law,  to  say  too 
much  of  the  service  he  rendered  to  his 
country,  ^bitting  in  the  highest  judicial 
place  for  more  than  a  generation ;  familiar, 
from  the  beginning,  with  the  Federal  Con 
stitution,  with  the  purposes  of  its  framers, 
and  with  all  the  objections  of  its  critics; 
accustomed  to  meet  these  objections  from 
the  time  he  had  served  in  the  Virginia  Con 
vention  of  1788  ;  convinced  of  the  purpose 
and  capacity  of  this  instrument  to  create  a 
strong  nation,  competent  to  make  itself  re 
spected  at  home  and  abroad,  and  able  to  speak 
with  the  voice  and  strike  with  the  strength 
of  all ;  assured  that  this  was  the  paramount 
necessity  of  the  country,  and  that  the  great 
source  of  danger  was  in  the  jealousies  and  . 
adverse  interests  of  the  States,  —  Marshall 
acted  on  his  convictions.  He  determined 
to  give  full  effect  to  all  the  affirmative  con 
tributions  of  power  that  went  to  make  up 
a  great  and  efficient  national  government ; 
arid  fully,  also,  to  enforce  the  national  re- 


58  JOHN  MARSHALL 

straints  and  prohibitions  upon  the  States. 
In  both  cases  he  included  not  only  the  powers 
expressed  in  the  Constitution,  but  those  also 
which  should  be  found,  as  time  unfolded,  to 
be  fairly  and  clearly  implied  in  the  objects 
for  which  the  federal  government  was  estab- 
lished.  \  In  that  long  judicial  life,  with  which 
Providence  blessed  him,  and  blessed  his 
country,  he  was  able  to  lay  down,  in  a  suc 
cession  of  cases,  the  fundamental  considera 
tions  which  fix  and  govern  the  relative  func 
tions  of  the  nation  and  the  States,  so  plainly, 
with  such  "fullness,  with  such  simplicity  and 
strength  of  argument,  such  a  candid  allow 
ance  for  all  that  was  to  be  said  upon  the 
other  side,  in  a  tone  so  removed  from  con 
troversial  bitterness,  so  natural  and  fit  for  a 
great  man  addressing  the  "  serene  reason  " 
of  mankind,  as  to  commend  these  things  to 
the  minds  of  his  countrymen,  and  firmly  to 
fix  them  in  the  jurisprudence  of  the  nation  ; 
so  that  "  when  the  rain  descended  and  the 
floods  came,  and  the  winds  blew  and  beat 
upon  that  house,  it  fell  not,  because  it  was 
founded  upon  a  rock."  j  It  was  Marshall's 
J  L 


CONSTITUTIONAL  LAW  59 

strong  constitutional  doctrine,  explained  in 
detail,  elaborated,  powerfully  argued,  over 
and  over  again,  with  unsurpassable  earnest 
ness  and  force,  placed  permanently  in  our 
judicial  records,  holding  its  own  during  the 
long  emergence  of  a  feebler  political  theory, 
and  showing  itself  in  all  its  majesty  when 
war  and  civil  dissension  came,  —  it  was 
largely  this  that  saved  the  country  from  suc 
cumbing,  in  the  great  struggle  of  forty  years  / 
ago,  and  kept  our  political  fabric  from  going  ^ 
to  pieces.  _ 

I  do  not  forget  our  own  Webster,  or 
others,  in  saying  that  to  Marshall  (if  we 
may  use  his  own  phrase  about  Washing 
ton),  "more  than  to  any  other  individual, 
and  as  much  as  to  one  individual  was  pos 
sible,"  do  we  owe  that  prevalence  of  sound 
constitutional  opinion  and  doctrine  at  the 
North  that  held  the  Union  together ;  to  that 
combination  in  him,  of  a  great  statesman's 
sagacity,  a  great  lawyer's  lucid  exposition 
and  persuasive  reasoning,  a  great  man's  can 
dor  and  breadth  of  view,  and  that  judicial 
authority  on  the  bench,  allowed  naturally 


GO  JOHN  MARSHALL 

and  as  of  right,  to  a  large,  sweet  nature, 
which  all  men  loved  and  trusted,  capable  of 
harmonizing  differences  and  securing  the 
largest  possible  amount  of  cooperation  among 
discordant  associates.  In  a  very  great  de 
gree,^  was  Marshall,  and  these  things  in 
him,  that  have  wrought  out  for  us  a  strong 
and  great  nation,  one  which  men  can  love 
and  die  for  ;  that  "  mother  of  a  mighty  race," 
that  stirred  the  soul  of  Bryant  half  a  century 
ago,  as  he  dreamed  how  — 

"  The  thronging-  years  in  glory  rise, 

And  as  they  fleet, 
Drop  strength  and  riches  at  thy  feet ;  " 

the  nation  whose  image  flamed  in  the  heart 
of  Lowell,  a  generation  since,  as  he  greeted 
her  coming  up  out  of  the  Valley  of  the 
Shadow  of  Death :  — 

"  Oh  Beautiful,  my  country,  ours  once  more  !  .  .  . 
Among-  the  nations  bright  beyond  compare  I  ... 
What  were  our  lives  without  thee  ? 
What  all  our  lives  to  save  thee  ? 
We  reck  not  what  we  gave  thee, 
We  will  not  dare  to  doubt  thee, 
But  ask  whatever  else,  and  we  will  dare  I " 


CONSTITUTIONAL  LAW  61 

It  was  early  in  Marshall's  day  that  the 
Supreme  Court  first  took  the  grave  step  of 
disregarding  an  act  of  Congress,  —  a  coordi 
nate  department,  —  which  conflicted  with  the 
National  Constitution.  The  right  to  deal 
thus  with  their  legislatures  had  already  been 
asserted  in  the  States,  and  once  or  twice  it 
had  really  been  exercised.  Had  the  ques 
tion  related  to  a  conflict  between  that  Con 
stitution  and  the  enactment  of  a  State,  it 
would  have  been  a  simpler  matter.  These 
two  questions,  under  European  written  con 
stitutions,  are  regarded  as  different  ones.  It 
is  almost  necessary  to  the  working  of  a  fed 
eral  system  that  the  general  government,  and 
each  of  its  departments,  should  be  free  to 
disregard  acts  of  any  department  of  the  local 
states  which  may  be  inconsistent  with  the 
federal  constitution.  And  so  in  Switzerland 
and  Germany  the  federal  courts  thus  treat 
local  enactments.  But  there  is  not  under 
any  written  constitution  in  Europe  a  country 
where  a  court  deals  in  this  way  with  the 
act  of  its  coordinate  legislature.  In  Ger 
many,  at  one  time,  this  was  done,  under  the 


n 


62  JOHN  MARSHALL 

influence  of  a  study  of  our  law,  but  it  was 
soon  abandoned.1 

In  the  colonial  period,  while  we  were  de 
pendencies  of  Great  Britain,  our  legislation 
was  subject  to  the  terms  of  the  royal  char 
ters.  Enactments  were  often  disallowed  by 
the  English  Privy  Council,  sometimes  acting 
as  a  mere  reviser  of  the  colonial  legislation, 
and  sometimes  as  an  appellate  judicial  tribu 
nal.  Our  people  were,  in  this  way,  familiar 
with  the  theory  of  a  dependent  legislature, 
one  whose  action  was  subject  to  reversal  by 
judicial  authority,  as  contrary  to  the  terms 
of  a  written  charter  of  government. 

When,  therefore,  after  the  war  of  inde 
pendence,  our  new  sovereign,  namely,  our 
selves,  the  people,  came  to  substitute  for  the 
old  royal  charters  the  people's  charters,  what 
we  call  our  "  constitutions/'  -  —  it  was  natural 
to  expect  some  legal  restraint  upon  legisla 
tion.  It  was  not  always  found  in  terms; 
indeed,  it  was  at  first  hardly  ever,  if  at  all, 
found  set  down  in  words.  But  it  was  a 

1  Coxe,  Jud.  Power,  95-102 ;  Thayer's  Cases  on  Con. 
stitutional  Law,  i.  146-149. 


CONSTITUTIONAL  LAW  63 

natural  and  just  interpretation  of  these  in 
struments,  made  in  regions  with  such  a  his 
tory  as  ours  and  growing  out  of  the  midst  of 
such  ideas  and  such  an  experience,  to  think 
that  courts,  in  the  regular  exercise  of  their 
functions,  that  is  to  say,  in  dealing  with  liti 
gated  cases,  could  treat  the  constitutions  as 
law  to  be  applied  by  them  in  determining 
the  validity  of  legislation. 

But  this,  although,  as  we  may  well  think, 
a  sound  conclusion,  was  not  a  necessary  one  ; 
and  it  was  long  denied  by  able  statesmen, 
judges,  and  lawyers.  An  elaborate  and 
powerful  dissenting  opinion  by  Chief  Justice 
Gibson,  of  Pennsylvania,  containing  the  most 
searching  argument  on  the  subject  with 
which  I  am  acquainted,  given  in  1825,1 
reaches  the  result  that  under  no  constitu 
tion  where  the  power  to  set  aside  legislative 
enactments  is  not  expressly  given,  does  it 
exist.  But  it  is  recognized  that  in  the  Fed 
eral  Constitution  the  power  is  given,  as  re 
gards  legislation  of  the  States  inconsistent 
with  the  Federal  Constitution  and  laws. 

1  Eakin  v.  Raub,  12  Sergeant  &  Rawle,  330. 


64  JOHN  MARSHALL 

It  is  not  always  noticed  that  in  making  our 
Federal  Constitution,  there  was  an  avoidance 
of  any  explicit  declaration  of  such  a  power 
as  touching  federal  legislation,  while  it  was 
carefully  provided  for  as  regards  the  States. 
In  the  Federal  Convention,  there  was  great 
anxiety  to  control  the  States,  in  certain  par 
ticulars  ;  and  various  plans  were  put  for 
ward,  such  as  that  Congress  should  have  a 
negative  on  state  laws,  and  that  governors 
of  the  States  should  be  appointed  by  the 
federal  authority,  with  power  to  negative 
state  acts. 

But  all  these,  at  last,  were  rejected,  and 
the  matter  took  the  shape  of  a  provision  that 
the  Constitution  and  the  constitutional  laws 
and  treaties  of  the  United  States  should  be 
the  supreme  law  of  the  respective  States; 
and  the  judges  of  the  several  /States  should 
be  bound  thereby,  anything  in  the  constitu 
tion  or  laws  of  any  State  to  the  contrary 
notwithstanding.  Later,  the  Committee  on 
Style  changed  the  phrase  "  law  of  the  re 
spective  States  "  to  "  law  of  the  land."  But 
the  language,  as  to  binding  the  judges,  was 


CONSTITUTIONAL  LAW  65 

•still  limited  to  the  judges  of  the  several 
States.  Observe,  then,  the  scope  of  this  pro 
vision  :  it  was  to  secure  the  authority  of  the 
federal  system  within  the  States. 

As  to  any  method  of  protecting  the  fed 
eral  system  within  its  own  household,  that  is 
to  say,  as  against  Congress,  it  was  proposed 
in  the  convention,  for  one  thing,  that  each 
House  of  Congress  might  call  upon  the 
judges  for  opinions ;  and,  again,  it  was 
urged,  and  that  repeatedly  and  with  great 
persistence,  that  the  judges  should  be  joined 
with  the  executive  in  passing  on  the  approval 
or  disapproval  of  legislative  acts,  —  in  what 
we  call  the  veto  power.  It  was  explicitly 
said,  in  objecting  to  this,  that  the  judges 
woidd  have  the  right  to  disregard  unconsti 
tutional  laws  anyway,  —  an  opinion  put  for 
ward  by  some  of  the  weightiest  members. 
Yet  some  denied  it.  And  we  observe  that 
the  power  was  not  expressly  given.  When 
we  find  such  a  power  expressly  denied,  and 
yet  not  expressly  given ;  and  when  we  ob 
serve,  for  example,  that  leading  public  men, 
e.  </.,  so  conspicuous  a  member  of  the  con- 


66  JOHN  MARSHALL 

vention  as  Charles  Pinckney  of  South  Caro 
lina,  afterwards  a  senator  from  that  State, 
wholly  denied  the  power  ten  years  later ; l  it 
being  also  true  that  he  and  others  of  his  way 
of  thinking  urged  the  express  restraints  on 
state  legislation,  —  we  may  justly  reach  the 
conclusion  that  this  question,  while  not  over 
looked,  was  intentionally  left  untouched. 
Like  the  question  of  the  bank  and  various 
others,  presumably  it  was  so  left  in  order 
not  to  stir  up  enemies  to  the  new  instru 
ment  ;  left  to  be  settled  by  the  silent  deter 
minations  of  time,  or  by  later  discussion. 

Turning  now  to  the  actual  practice  under 
the  government  of  the  United  States,  we  find 
that  the  judges  of  the  Supreme  Court  had 
hardly  taken  their  seats,  at  the  beginning  of 

1  What  Pinckney  said  in  1799  was  this :  "  Upon  no 
subject  am  I  more  convinced  than  that  it  is  an  unsafe 
and  dangerous  doctrine  in  a  republic  ever  to  suppose  that 
a  judge  ought  to  possess  the  right  of  questioning  or  de 
ciding  upon  the  constitutionality  of  treaties,  laws,  or  any 
act  of  the  legislature.  It  is  placing  the  opinion  of  an 
individual,  or  of  two  or  three,  above  that  of  both  branches 
of  Congress,  a  doctrine  which  is  not  warranted  by  the 
Constitution,  and  will  not,  I  hope,  long  have  many  advo 
cates  in  this  country."  Wharton,  State  Trials,  412. 


CONSTITUTIONAL  LAW  67 

the  government,  when  Chief  Justice  Jay  and 
several  other  judges,  in  1790,  communicated 
to  the  President  objections  to  the  Judiciary 
Act,  as  violating  the  Constitution,  in  naming 
the  judges  of  the  Supreme  Court  to  be  judges 
also  of  the  circuit  courts.1  These  judges, 
however,  did  not  refuse  to  act  under  this  un 
constitutional  statute ;  and  the  question  did 
not  come  judicially  before  the  court  until 
Marshall's  time,  in  1803,2  when  it  was  held 
that  the  question  must  now  be  regarded  as 
settled  in  favor  of  the  statute,  by  reason  of 
acquiescence  since  the  beginning  of  the  gov 
ernment.3 

1  4  Amer.  Jurist,  293  ;  Story,  Const.  §  1579,  n. 

2  Stuart  v.  Laird,  1  Cranch,  299. 

8  Marshall,  when  the  act  of  1802  restored  the  old  sys 
tem,  stated  to  his  associates  his  deliberate  agreement 
with  the  opinion  expressed  by  his  predecessors  above 
referred  to,  and  proposed  to  refuse  to  sit  in  the  circuit 
court.  All  his  brethren  agreed  with  his  view  on  the  con 
stitutional  point,  but  thought  the  question  should  be  re 
garded  as  at  rest,  by  reason  of  the  earlier  practice  of  the 
court,  up  to  1801.  This  view  prevailed,  and  was  soon 
afterwards,  as  above  stated,  judicially  adopted  by  the 
court.  This  statement  is  made  by  Chancellor  Kent  in 
3  N.  Y.  Review,  347  (1838). 

For  the  knowledge  of  the  authorship  of  this  valuable 
article  and  of  another  related  one  in  2  ib.  372,  I  am  in- 


68  JOHN  MARSHALL 

In  observing,  historically,  the  earlier  con 
ceptions  of  the  judges  of  the  Supreme  Court 
as  to  the  method  of  dealing  with  unconstitu 
tional  legislation,  one  or  two  other  transac 
tions  should  be  looked  at.  In  1792  (1  U.  S. 
Statutes,  243)  a  statute  was  enacted  which  re 
quired  the  circuit  court,  partly  composed,  as 
we  have  seen,  of  the  judges  of  the  Supreme 
Court,  to  pass  on  the  claims  of  certain  sol 
diers  and  others  demanding  pensions,  and  to 
report  to  the  Secretary  of  War ;  who  was, 
in  turn,  to  revise  these  returns  and  report 
to  Congress.  The  judges  found  great  diffi 
culty  in  acting  under  this  statute,  because  it 
imposed  on  them  duties  not  judicial  in  their 
nature ;  and  they  expressed  their  views  in 
various  ways. 

In  one  circuit,  the  judges  thinking  it  im 
proper  to  act  under  this  statute  in  their  judi 
cial  capacity,  for  the  reason  above-named, 
consented  from  charitable  motives  to  serve 
as  "  commissioners."  1 

debted  to  the  courtesy  of  Dr.  J.  S.  Billings,  the  Director 

of  the  New  York  Public  Library,  and  the  investigations  of 

Mr.  V.  II.  Paltsits,  one  of  the  librarians  in  that  institution. 

1  This  construction,  that  the  statute  purported  to  au- 


CONSTITUTIONAL  LAW  69 

In  the  Pennsylvania  circuit,  the  three 
judges  wrote,  in  a  letter  to  the  President, 
that  "  on  a  late  painful  occasion  "  they  had 
held  the  law  invalid ;  and  they  now  stated  the 
matter  to  him,  as  being  the  person  charged 
with  the  duty  of  "  taking  care  that  the  laws 
be  faithfully  executed."  They  assured  him 
that  while  this  judicial  action  of  disregard 
ing  an  act  of  Congress  had  been  necessary, 
it  was  far  from  pleasant. 

The  judges  of  another  circuit,  before 
which  no  case  had  come,  wrote  a  similar 
letter  to  the  President,  declaring  their  rea 
sons  for  thinking  the  law  invalid. 

In  this  same  year,  1792,  the  Pennsyl 
vania  case  came  regularly  up  to  the  Su 
preme  Court,  and  was  argued  there.1  This 
might  have  produced  a  decision,  but  none 
was  ever  given;  and  in  the  next  year  a 
change  in  the  statute  provided  relief  for  the 
pension  claimants  in  another  way. 

It  is  to  be  remarked,  then,  that  this  mat- 

thorize  their  acting  in  that  capacity  was  afterwards,  in 
1794,  held  by  the  Supreme  Court  to  be  wrong.     Yale 
Todd's  Case,  13  Howard,  52. 
i  Hayburn's  Case,  2  Dallas,  409. 


70  JOHN  MARSHALL 

ter  resulted  in  no  decision  by  the  Supreme 
Court  of  the  United  States  on  the  question 
of  the  constitutionality  of  the  pension  act ; 
it  produced  only  a  decision  at  one  of  the 
circuits,  and  informal  expressions  of  opinion 
from  most  of  the  judges. 

These  non-judicial  communications  of 
opinion  to  the  President  seem,  as  has  been 
said,  to  have  proceeded  on  the  theory  of  fur 
nishing  information  to  one  whose  official 
duty  it  was  to  see  that  the  fundamental  law 
was  faithfully  carried  out ;  just  as  "  Coun 
cils  of  Revision,"  established  by  the  consti 
tutions  of  Pennsylvania  and  Vermont,  were 
to  report  periodically  as  to  infractions  of 
the  constitution. 

It  was,  perhaps,  these  practices  of  private 
communication  between  the  President  and 
the  judges  that  led  very  soon  to  another 
interesting  matter,  —  a  formal  request  by 
the  President,  in  1793,  for  an  opinion  from 
the  judges  on  twenty-nine  questions  relating 
to  the  treaties  with  France.  This  request 
accorded  with  a  colonial  practice  of  asking 
such  opinions  from  judges ;  a  usage  centu- 


CONSTITUTIONAL  LAW  71 

ries  old  in  England,  and  preserved  to-day  in 
the  constitutions  of  a  few  States  in  this 
country.  The  judges,  however,  declined 
answering  these  questions,  "  considering 
themselves,"  says  Marshall,  in  his  "  Life  of 
Washington,"  "  merely  as  constituting  a  legal 
tribunal  for  the  decision  of  controversies 
brought  before  them  in  legal  form."  1  Al 
though  this  seems  to  have  been  obviously 
the  right  course,  since  the  proposition  to 
give  power  to  put  questions  to  the  judges  in 
this  way  had  been  considered  in  the  Federal 
Convention  and  not  allowed,  yet  we  may  re 
mark  how  convenient  such  a  power  would 
often  have  proved.  If  it  be  admitted,  as  it 
always  has  been  in  England,  and  is,  almost 
universally,  here,  that  such  opinions  are 
merely  learned  advice  and  bind  nobody,  not 
even  the  judges,  they  would  often  afford 
the  executive  and  Congress  much  needed 
and  early  help  upon  constitutional  questions 
in  serious  emergencies ;  such,  for  example, 
as  have  lately  presented  themselves  in  our 
own  history. 

1  Volume  v.,  p.  444  (Philadelphia  edition,  1807). 


72  JOHN  MARSHALL 

After  this,  there  was  an  occasional  allu 
sion  in  the  opinions  of  the  Supreme  Court 
to  the  question  of  the  power  of  that  court 
to  pass  on  the  constitutionality  of  Federal 
enactments  as  being  an  undecided  and  more 
or  less  doubtful  question.  But  not  until 
1803,  early  in  Marshall's  time,  was  the 
point  judicially  settled  by  the  Supreme 
Court.  It  came  up  in  the  case  of  Mar- 
bury  v.  Madison,1  the  first  case  at  the  third 
term  after  any  opinions  of  Marshall  were 
reported.  In  that  case,  an  act  of  Congress 
was  declared  unconstitutional. 

It  was  more  than  half  a  century  before 
that  happened  again. 

Marbury  v.  Madison  was  a  remarkable 
case.  It  was  connected  intimately  with  cer 
tain  executive  action  for  which  Marshall  as 
Secretary  of  State  was  partly  responsible. 
For  various  reasons  the  case  must  have  ex 
cited  peculiar  interest  in  his  mind.  Within 
three  weeks  before  the  end  of  Adams's  ad 
ministration,  on  February  13,  1801,  while 
Marshall  was  both  Chief  Justice  and  Secre- 

1  1  Cranch,  137. 


CONSTITUTIONAL  LAW  73 

tary  of  State,1  an  act  of  Congress  had  abol 
ished  the  old  system  of  circuit  and  district 
courts,  and  established  a  new  one.  This 
gave  to  the  President,  Adams,  the  appoint 
ment  of  many  new  judges,  and  kept  him 
and  his  secretary  busy,  during  the  last 
hours  of  the  administration,  in  choosing  and 
commissioning  the  new  officials. 

And  another  thing.  The  Supreme  Court 
had  consisted  heretofore  of  six  judges.  This 
same  act  provided  that  after  the  next  vacancy 
there  should  be  five  judges  only.  Such  ar 
rangements  as  these,  made  by  a  party  just 
going  out  of  power,  were  not  ill  calculated 
to  create,  in  the  mind  of  the  party  coming 
in,  the  impression  of  an  intention  to  keep 
control  of  the  judiciary  as  long  as  possible. 

There  were,  to  be  sure,  other  reasons  for 
some  of  this  action.  Several  judges  of  the 
Supreme  Court,  as  we  have  seen,  had  signi* 
fied  to  Washington,  in  1790,  the  opinion 

1  In  like  manner,  Jay,  commissioned  Chief  Justice  on 
September  26,  1789,  continued,  at  Washington's  request, 
to  act  also  as  foreign  secretary  until  Jefferson's  return 
from  Europe.  Jefferson  did  not  reach  New  York  until 
March  21,  1790. 


74  JOHN  MARSHALL 

that  the  judiciary  act  of  the  previous  year 
was  unconstitutional  in  making  the  judges 
of  that  court  judges  also  of  the  circuit  court. 
The  new  statute  corrected  this  fault.  Yet, 
in  regard  to  the  time  chosen  for  this  very 
proper  action,  it  was  observable  that  ten 
years  and  more  had  been  allowed  to  pass 
before  the  mischief  so  promptly  pointed  out 
by  the  early  judges  was  corrected. 

Again,  in  approaching  the  case  of  Mar- 
bury  v.  Madison,  it  is  to  be  observed  that 
another  matter  relating  to  the  Supreme 
Court  had  been  dealt  with.  ^'/This  act  of 
February  13,  1801,  provided  that  the  two 
terms  of  the  court,  instead  of  being  held,  as 
hitherto,  in  February  and  August,  should 
thereafter  be  held  in  June  and  December. 
Accordingly,  the  court  sat  in  December, 
1801.  It  adjourned,  as  it  imagined,  to 
June,  1802.  But,  on  March  8  of  that  year, 
Congress,  under  the  new  administration, 
repealed  the  law  of  1801,  unseated  all  the 
new  judges,  and  reinstated  the  old  system, 
with  its  August  and  February  terms.  And 
then,  a  little  later  in  the  year,  the  August 


CONSTITUTIONAL  LAW  75 

term  of  the  court  was  abolished,  leaving 
only  one  term  a  year,  to  begin  on  the  first 
Monday  in  February.  Thus,  since  the  June 
term  was  abolished,  and  February  had  then 
passed,  and  there  was  no  longer  an  August 
or  a  December  term,  the  court  found  itself 
in  effect  adjourned  by  Congress  from  De 
cember,  1801,  to  February,  1803  ;  and  so  it 
had  no  session  during  the  whole  of  the  year 
1802. 

If  the  legislation  of  1801  was  calculated 
to  show  the  importance  attached  by  an  out 
going  political  party  to  control  over  the 
judiciary,  that  of  1802  might  indicate  how 
entirely  the  incoming  party  agreed  with  them, 
and  how  well  inclined  they  were  to  profit  by 
their  own  opportunities. 

How  was  it,  meantime,  with  the  judiciary 
itself  ?  Unfortunately,  the  Supreme  Court 
had  already  been  drawn  into  the  quarrel. 
For,  at  the  single  December  term,  in  1801, 
held  under  the  statute  of  that  year,  an  appli 
cation  had  been  made  to  the  court  by  four 
persons  in  the  District  of  Columbia  for  a 
rule  upon  James  Madison,  Secretary  of 


76  JOHN  MARSHALL 

State,  to  show  cause  why  a  writ  of  manda*. 
mus  should  not  issue  requiring  him  to  issue 
to  these  persons  certain  commissions  as  jus 
tice  of  the  peace,  which  had  been  left  in 
Marshall's  office  undelivered  at  the  time 
when  he  ceased  to  add  to  his  present  func 
tions  those  of  Secretary  of  State.  They  had 
been  made  out,  sealed,  and  signed,  and  were 
supposed  to  have  been  found  by  Madison 
when  he  came  into  office,  and  to  be  now 
withheld  by  him.  This  motion  was  pending 
when  the  court  adjourned,  in  December, 
1801.  Of  course,  a  motion  for  a  mandamus 
to  the  head  of  the  cabinet,  upon  a  matter  of 
burning  interest,  must  have  attracted  no  lit 
tle  attention  on  the  part  of  the  new  adminis 
tration.  Abolishing  the  August  term  served 
to  postpone  any  opportunity  for  early  action 
by  the  court,  and  to  remind  the  judiciary  of 
the  limits  of  its  power. 

At  last  the  court  came  together,  in  Feb 
ruary,  1803,  and  found  the  mandamus  case 
awaiting  its  action.  It  is  the  first  one  re 
ported  at  that  term.  Since  Marshall  had 
taken  his  seat,  there  had  as  yet  been  only 


CONSTITUTIONAL  LAW  77 

five  reported  cases.  All  the  opinions  had 
been  given  by  him,  unless  a  few  lines  "  by  the 
court  "  may  be  an  exception ;  and  according 
to  the  new  usage  by  which  the  Chief  Jus 
tice  became,  wherever  it  was  possible,  the 
sole  organ  of  the  court,  Marshall  now  gave 
the  opinion  in  Marbury  v.  Madison.  It 
may  reasonably  be  wondered  that  the  Chief 
Justice  should  have  been  willing  to  give  the 
opinion  in  such  a  case,  and  especially  that 
he  should  have  handled  the  case  as  he  did. 
But  he  was  sometimes  curiously  regardless 
of  conventions. 

If  it  be  asked  what  was  decided  in  Mar- 
bury  v.  Madison,  the  answer  is  that  this, 
and  only  this,  was  decided,  namely,  that  the 
court  had  no  jurisdiction  to  do  what  they 
were  asked  to  do  in  that  case  (i.  e.  to  grant 
a  writ  of  mandamus,  in  the  exercise  of  their 
original  jurisdiction),  because  the  Constitu 
tion  allowed  to  the  court  no  such  power  ;  and, 
although  an  act  of  Congress  had  undertaken 
to  confer  this  jurisdiction  on  them,  Congress 
had  no  power  to  do  it,  and  therefore  the  act 
was  void,  and  must  be  disregarded  by  the 


78  JOHN  MARSHALL 

court.1  It  is  the  decision  upon  this  point 
that  makes  the  case  famous ;  and  undoubt 
edly  it  was  reached  in  the  legitimate  exer 
cise  of  the  court's  power.  To  this  important 
part  of  the  case  attention  will  be  called  in 
5the  next  chapter. 

Unfortunately,  instead  of  proceeding  as 
courts  usually  do,  the  opinion  began  by 
passing  upon  all  the  points  which  the  denial 
of  its  own  jurisdiction  took  from  it  the  right 
to  treat.  It  was  elaborately  laid  down,  in 
about  twenty  pages,  out  of  the  total  twenty- 
seven  which  comprise  the  opinion,  that  Madi 
son  had  no  right  to  detain  the  commissions ; 
and  that  mandamus  would  be  the  proper 
remedy  in  any  court  which  had  jurisdiction 
to  grant  it. 

And  thus,  as  the  court,  by  its  decision  in 
this  case,  was  sharply  reminding  the  legisla 
ture  of  its  limitations,  so  by  its  dicta,  and 
in  this  irregular  method,  it  intimated  to  the 
President,  also,  that  his  department  was  not 
exempt  from  judicial  control.  In  this  way 

1  And  so  the  careful  headnote  of  Judge  Curtis  in  1 
Curtis's  Decisions  of  the  Supreme  Court,  368. 


CONSTITUTIONAL  LAW  79 

two  birds  were  neatly  reached  with  the  same 
stone. 

Marshall  made  a  very  noticeable  remark 
in  his  opinion,  seeming  to  point  to  the  chief 
executive  himself,  and  not  merely  to  his 
secretary,  when  he  said,  "  It  is  not  the  office 
of  the  person  to  whom  the  writ  is  directed, 
but  the  nature  of  the  thing  to  be  done, 
by  which  the  propriety  or  impropriety  of 
issuing  the  mandamus  is  to  be  determined  ;  " 
—  a  hint  that,  on  an  appropriate  occasion, 
the  judiciary  might  issue  orders  personally 
to  him.  This  remark  got  illustration  a 
few  years  later,  in  1807,  when  the  Chief 
Justice,  at  the  trial  of  Aaron  Burr  in  Rich 
mond,  ordered  a  subpoena  to  the  same  Presi 
dent,  Thomas  Jefferson,  directing  him  to 
bring  thither  certain  documents.  It  was  a 
strange  conception  of  the  relations  of  the 
different  departments  of  the  government  to 
each  other,  to  imagine  that  a  subpoena,  that 
is  to  say  an  order  accompanied  with  a  threat 
of  punishment,  was  a  legitimate  judicial 
mode  of  communicating  with  the  chief  ex 
ecutive.  On  Jefferson's  part,  this  order 


80  JOHN  MARSHALL 

was  received  with  the  utmost  discontent; 
and  justly.  He  had  a  serious  apprehension 
of  a  purpose  to  arrest  him  by  force,  and 
was  prepared  to  protect  himself.1  Mean 
time  he  sent  to  the  United  States  Attorney 
at  Richmond  the  papers  called  for,  but  ex 
plained,  with  dignity,  that  while  the  execu 
tive  was  willing  to  testify  in  Washington,  it 
could  not  allow  itself  to  be  "  withdrawn 
from  its  station  by  any  coordinate  authority." 
It  was  partly  to  the  tendency  on  Mar 
shall's  part,  just  mentioned,  to  give  little 
thought,  often,  to  ordinary  conventions,  and 
partly  to  his  kindness  of  heart,  that  we 
should  attribute  another  singular  occurrence, 
—  the  fact  that  he  attended  a  dinner  at  the 
house  of  an  old  friend,  one  of  Burr's  coun 
sel,  when  he  knew  that  Burr  was  to  be  pre 
sent,  and  when  that  individual,  having  previ 
ously  been  brought  to  Richmond  under 
arrest,  examined  by  Marshall,  and  admitted 
to  bail,  was  still  awaiting  the  action  of  the 
grand  jury  with  reference  to  further  judicial 

1  See  Ford's  Jefferson,  ix.  C2 ;  draft  of  a  letter  to  Dis 
trict  Attorney  Hay. 


CONSTITUTIONAL  LAW  81 

proceedings  before  Marshall  himself.  He 
accepted  the  invitation  before  he  knew  that 
Burr  was  to  be  of  the  company.  I  have 
heard  from  one  of  his  descendants  that 
his  wife  advised  him  not  to  go ;  but  he 
thought  it  best  not  to  seem  too  fastidious,  or 
to  appear  to  censure  his  old  friend,  the  host, 
by  staying  away.  He  sat,  we  are  told,  at 
the  opposite  end  of  the  table  from  Burr, 
had  110  communication  with  him,  and  went 
away  early.  But  we  must  still  wonder  at  an 
act  which  he  himself  afterwards  much  re 
gretted. 


CHAPTER  IV 
MARSHALL'S  CONSTITUTIONAL  OPINIONS 

THIS  is  not  the  place   for   any  detailed 
examination  of  Marshall's  decisions.     But 
it  would  be  a  strange  omission  to  leave  out 
all  consideration  of  what  played  so  great  a 
part  in  his  life.     I   must  draw,  therefore, 
upon  the  patience  of  the  reader,  while  some 
points  are  mentioned  relating  to  that  class 
of  his  opinions  which  is   at  once  the  most 
|  important  and  of  the  widest  interest,  viz., 
|  those  given  in  constitutional  cases.    If  these 
matters  seem  to  any  reader  dull  or  unintelli 
gible,  he  must  be  allowed  full  liberty  to  pass 
j  them  by ;  but  I  cannot  wholly  omit  them. 

The  keynote  to  Marshall's  leading  consti 
tutional  opinions  is  that  of  giving  free 
scope  to  the  power  of  the  national  gov 
ernment.  These  leading  opinions  may  be 
divided  into  three  classes :  First,  such  as 
discuss  the  nature  and  reach  of  the  Federal 


CONSTITUTIONAL  OPINIONS        S3 

Constitution,  and  the  general  relation  of  the 
federal  government  to  the  States.  Of  this 
class,  McCulloch  v.  Maryland,  probably  his 
greatest  opinion,  is  the  chief  illustration. 
Second,  those  cases  which  are  concerned 
with  the  specific  restraints  and  limitations 
upon  the  States.  To  this  class  may  be 
assigned  Fletcher  v.  Peck,  the  bankruptcy 
cases  of  Sturgis  v.  Crowninshield  and  Ogden 
v.  Saunders,  and  Dartmouth  College  v. 
Woodward.  Third,  such  as  deal  with  the 
general  theory  and  principles  of  constitu 
tional  law.  There  is  little  of  this  sort ; 
except  as  it  is  incidentally  touched,  perhaps 
the  only  case  is  Marbury  v.  Madison. 

If  we  look  at  these  great  cases  merely 
with  reference  to  their  effect  upon  the  his 
tory  and  development  of  the  country,  they 
are  of  the  very  first  importance.  When  one 
names  Marbury  v.  Madison,  the  first  case 
where  the  Supreme  Court  held  an  act  of 
Congress  invalid,  and  the  only  one  in  Mar 
shall's  time  ;  Fletcher  v.  Peck  and  Dart 
mouth  College  v.  Woodward,  where  legisla 
tive  grants  and  an  act  of  incorporation  are 


84  JOHN  MARSHALL 

held  to  be  contracts,  protected  by  the  United 
States  Constitution  against  state  legislation 
impairing  their  obligation ;  and  New  Jersey  v. 
Wilson,  holding  that  a  legislative  exemption 
from  taxation  is  also  a  contract  protected  in 
the  same  way ;  —  one  sees  the  tremendous  im 
portance  of  the  decisions. 

Of  course  we  are  not  to  confound  this 
powerful  effect  of  a  judgment,  or  the  moral 
approbation  with  which  we  may  be  inclined 
to  view  it,  with  the  intrinsic  merit  of  the 
reasoning  or  the  legal  soundness  of  the  con 
clusions.  It  is  not  uncommon  to  speak  of 
the  reasoning  in  Marbury  v.  Madison  and 
Dartmouth  College  v.  Woodward  with  the 
greatest  praise.  But  neither  of  these  opin 
ions  is  entitled  to  rank  with  Marshall's  great 
est  work.  The  very  common  view  to  which 
I  have  alluded  is  partly  referable  to  the  fal 
lacy  which  Wordsworth  once  remarked  upon 
when  a  friend  mentioned  "  The  Happy  War 
rior"  as  being  the  greatest  of  his  poems. 
"  No,"  said  the  poet,  "  you  are  mistaken ; 
your  judgment  is  affected  by  your  moral 
approval  of  the  lines." 


CONSTITUTIONAL  OPINIONS         85 

If  we  regard  at  once  the  greatness  of 
the  questions  at  issue  in  the  particular 
case,  the  influence  of  the  opinion,  and 
the  large  method  and  clear  and  skillful 
manner  in  which  it  is  worked  out,  there  is 
nothing  so  fine  as  the  opinion  in  McCulloch 
v.  Maryland,  given  at  the  February  term, 
1819.  The  questions  were,  first,  whether 
the  United  States  could  constitutionally  in 
corporate  a  bank  ;  and,  second,  if  it  could, 
whether  a  State  might  tax  the  operations  of 
the  bank  ;  as,  in  this  instance,  by  requiring 
it  to  use  stamped  paper  for  its  notes.  The 
bank  was  sustained  and  the  tax  condemned. 

In  working  this  out,  it  was  laid  down 
that  while  the  United  States  is  merely  a 
government  of  enumerated  powers,  and  these 
do  not  in  terms  include  the  granting  of  an 
incorporation,  yet  it  is  a  government  whose 
powers,  though  limited  in  number,  are  in 
general  supreme,  and  also  adequate  to  the 
great  national  purposes  for  which  they  are 
given  ;  that  these  great  purposes  carry  with 
them  the  power  of  adopting  such  means,  not 
prohibited  by  the  Constitution,  as  are  fairly 


86  JOHN  MARSHALL 

I  conducive  to  the  end ;  and  that  incorporat 
ing  a  bank  is  not  forbidden,  and  is  useful 

•  for  several  ends.  Further,  the  paramount 
relation  of  the  national  government,  whose 
valid  laws  the  Constitution  makes  the  su 
preme  law  of  the  land,  forbids  the  States  to 
tax,  or  to  "  retard,  impede,  burden,  or  in 

:  any  way  control  "  the  operations  of  the  gov 
ernment  in  any  of  its  instrumentalities. 

This  was  the  opinion  of  a  unanimous 
court,  in  which  five  out  of  the  seven  judges 
had  been  nominated  by  a  Republican  Presi 
dent.  But  it  caused  great  excitement  at 
the  South.  On  March  24,  1819,  Marshall 
wrote  from  Richmond  to  Judge  Story :  "  Our 
opinion  in  the  bank  case  has  roused  the 
sleeping  spirit  of  Virginia,  if  indeed  it  ever 
sleeps.  It  will,  I  understand,  be  attacked 
in  the  papers  with  some  asperity,  and  as 
those  who  favor  it  never  write  for  the 
public  it  will  remain  undefended,  and  of 
course  be  considered  as  damnably  heretical^ 
Again,  two  months  later,  "  The  opinion  in 
the  bank  case  continues  to  be  denounced  by 
the  Democracy  of  Virginia.  ...  If  the  prin- 


CONSTITUTIONAL  OPINIONS        87 

ciples  which  have  been  advanced  on  this 
occasion  were  to  prevail  the  Constitution 
would  be  converted  into  the  old  Confedera 
tion." 

Another  great  opinion,  of  the  same  class, 
and  also  bitterly  attacked,  was  given  in  the 
case  of  Cohens  v.  Virginia,  in  1821.  This 
case  came  up  on  a  writ  of  error  from  a  local 
court  at  Norfolk.  Cohens  had  been  con 
victed  of  selling  lottery  tickets  there,  con 
trary  to  the  statute  of  Virginia.  He  had  set 
up  as  a  defense  an  act  of  Congress  provid 
ing  for  drawing  lotteries  in  the  city  of 
Washington,  and  insisted  that  this  author 
ized  his  selling  tickets  in  Virginia.  When 
'the  case  reached  the  Supreme  Court  of  the 
United  States,  the  counsel  for  the  State  first 
denied  the  jurisdiction  of  that  court,  on  the 
ground,  among  others,  that  the  Constitution 
allowed  no  such  appeal  from  a  state  court, 
and  that  the  Judiciary  Act  of  1789  was  un 
constitutional  in  purporting  to  authorize  it. 
In  an  elaborate  opinion  by  Marshall,  one  of 
his  greatest  efforts,  these  contentions  were 
negatived.  When  afterwards,  the  case  came 


fc-t  JOHN  MARSHALL 

to  be  argued  on  the  merits,  the  decision 
below  was  sustained,  on  the  ground  that  the 
act  of  Congress  did  not  purport  to  author 
ize  the  sale  of  tickets  in  any  State  which  for 
bade  the  sale  of  them. 

Here  again  the  court  was  unanimous ; 
and  it  was  composed  of  the  same  judges  who 
decided  McCulloch  v.  Maryland.  But  the 
reception  of  Cohens  v.  Virginia  at  the  South 
was  even  worse  than  that  accorded  the 
other  case.  Judge  Roane,  of  the  Court  of 
Appeals  in  Virginia,  attacked  the  opinion 
anonymously  in  the  newspapers,  with  what 
Marshall  called  "coarseness  and  malig- 
jnity."  Jefferson,  also,  bitterly  objected  to  it. 
Nf  Of  two  other  cases  belonging  in  the  same 
class  of  Marshall's  opinions,  viz.,  Gibbons  v. 
Ogden,  in  1824,  and  Brown  v.  Maryland,  in 
1827,  it  is  enough  here  to  say  that  they  deal 
with  one  of  the  most  difficult  and  perplexed 
topics  of  constitutional  law,  namely,  the 
coordination  of  the  functions  of  the  national 
and  state  governments,  in  regard  to  the 
power  granted  to  Congress  to  regulate  for 
eign  and  interstate  commerce,  a  subject  of 


CONSTITUTIONAL  OPINIONS        89 

great  importance  and  difficulty,  on  which  the 
decisions  of  the  Supreme  Court  are  now  and 
long  have  been  involved  in  much  confusion 
and  uncertainty.  Gibbons  v.  Ogden  brought 
into  question  the  constitutionality  of  a  law 
of  New  York  granting  to  Fulton,  the  inven 
tor,  the  sole  right  of  navigating  the  waters 
of  New  York  by  steam.  The  grant  had 
been  sustained  by  Chancellor  Kent  and  by 
the  New  York  Court  of  Appeals ;  but  these 
decisions  were  now  overruled  in  a  famous 
and  powerful  opinion.  In  two  other  cases 
on  this  subject,  also  of  great  importance,  J 
Marshall  gave  leading  opinions.  It  may  3 
fairly  be  thought  that  his  treatment  of  the  *' 
general  question  involved  in  these  cases,  in-  | 
structive  as  it  was,  was  yet  less  fruitful  and 
less  far-seeing  than  in  most  of  his  other  great 
cases. 

He  was  now   in    a  region  pretty  closely 
connected   with   the  second   class  of   cases, 
above  named ;  a  set  of  cases,  where  even  so  . 
great  a  man  as  Marshall  erred  sometimes,  f 
from  interpreting  too  literally  and  too  nar-  | 
rowly  the  restraints  upon  the  States.    It  was 


90  JOHN  MARSHALL 

natural,  in  giving  full  scope  to  the  authority 
of  the  general  government,  that  he  should 
be  inclined  to  apply,  with  their  fullest  force 
and  operation,  these  clauses  of  restraint  and 
prohibition.  His  great  service  to  the  coun 
try  and  his  own  generation  was  that  of 
planting  the  national  government  on  the 
broadest  and  strongest  foundations.  That, 
as  he  rightly  conceived,  was  the  one  chief 
necessity  of  his  time.  In  doing  this,  when 
it  came  to  considering  the  reach  that  must 
also  be  allowed  to  the  States,  and  just  how 
the  coordination  of  the  two  systems  should 
be  worked  out,  probably  no  one  man,  no 
one  court,  no  human  wisdom  was  adequate, 
then,  to  mapping  it  all  out.  Time  alone, 
and  a  long  succession  of  men,  after  some 
ages  of  experience,  might  suffice  for  that. 
The  wisdom  of  those  who  made  the  Consti 
tution,  as  it  has  lately  been  said,  was  mainly 
shown  "  in  the  shortness  and  generality  of 
its  provisions,  in  its  silence,  and  its  absti 
nence  from  petty  limitations."  But,  as  time 
went  on,  definitions  and  specifications  had  to 
be  made  and  applied;  silence,  abstinence, 


CONSTITUTIONAL  OPINIONS        91 

generality,  were  no  longer  adequate.     And 
in  the  class  of  cases,  now  referred  to,  great 
and  far-reaching  as  were  the  results  of  Mar 
shall's  labor,  and  unqualifiedly  as  they  are  « 
often  praised,  one  may  perceive,  as  I  venture  "* 
to  think,  a  less  comprehensive  and  states-  j 
manlike  grasp  of   the  problems    and  their  f 
essential  conditions  than  are  found  in  some  I 
other  parts  of  his  work. 

And  so,  when  the  Chief  Justice,  in  1812, 
held,  without  argument,  that  a  grant  of  land  • 
by  a  State,  with  a  privilege  of  exemption 
from  taxation,  contained  a  contract  against  , 
future  taxation,  protected,  even  in  the  hands  ' 
of  subsequent  holders,  by  the  constitutional 
provisions  against  impairing  the  obligation 
of   contracts,    something     was    done    which 
would  probably  not  be  done  to-day,  if   the  ij 
question  came  up  for  the  first  time.     Cer-  j 
tainly  the  soundness  of  the  doctrine  has  been 
frequently  denied  by  judges  of  the  Supreme 
court,  and  it  has  only  survived  through  the 
device  of  construing  all  grants  in  the  nar 
rowest  manner.     "  Yielding,"  says  the  Court 
in  a  recent  case,  "  to  the  doctrine  that  im- 


92  JOHN  MARSHALL 

munity  from  taxation  may  be  granted,  that 
point  being  already  adjudged,  it  must  be 
considered  as  a  personal  privilege,  not  ex 
tending  beyond  the  immediate  grantee,  un 
less  otherwise  so  declared  in  express  terms." 
And  again  the  court  has  recently  remarked 
on  the  "  well-settled  rule  that  exemptions 
from  taxation  are  .  .  .  not  to  be  extended 
beyond  the  exact  and  express  language  used, 
construed  strictissimi  juris." 

Again,  in  Dartmouth  College  v.  Wood- 
I  ward,  in  1819,  when  it  was  held  that  a  legis 
lative  grant  of  incorporation  was  a  contract 
protected  by  the  same  clause  of  the  Constitu 
tion,  something  was  done  from  which  the 
court  was  subsequently  obliged  to  recede  in 
an  important  degree.  Acts  of  incorporation 
for  the  manufacture  of  beer,  for  carrying  on 
slaughter-houses,  for  dealing  in  offal,  and 
for  conducting  a  lottery,  —  a  reputable  busi 
ness  in  1819,  when  the  Dartmouth  College 
case  was  decided,  —  such  acts  as  these  have 
been  treated  by  the  Supreme  Court  as  not 
being  thus  protected.  It  is  held  that  no 
legislative  body  can  contract  to  part  with 


CONSTITUTIONAL  OPINIONS        93 

the  full   power  to  provide  for   the  health, 
morals,  and  safety  of  the  community.     Such  I 
things,  it  is  said,  are  not  the  proper  subject-  : 
matter  of  legislative  contract,  —  a  doctrine 
which  it  has  been  widely  thought    should, 
originally,  have  been  applied  to  all  acts  of 
incorporation.     "  The  State,"  says  a  distin-  i 
guished  judge,  and  writer  on  constitutional  > 
law,  in  speaking  of  the  Dartmouth  College 
doctrine  and  its  development,  "  was  stripped,  .} 
under   this    interpretation,    of    prerogatives 
that  are  commonly  regarded  as  inseparable    < 
from  sovereignty,  and  might  have  stood,  like 
Lear,  destitute  before  her'offspring,  had  not 
the  police  power  been  dexterously  declared 
paramount,  and  used  as  a  means  of  rescind 
ing  improvident  grants."  l 
V   In  the  great  bankruptcy  cases  of  Sturgis 
v.   Crowninshield  and  Ogden  v.  Saunders,  { 
where  it  was  held,  in  1819  and  1827,  that 
the   constitutional    provision    as    to   impair 
ing  the  obligation  of  contracts  forbade  the 
State    to   enact   an    insolvency   law   which 
should  discharge  a  person  from  liability  on  a 
1  Hare,  Am.  Const.  Law,  i.  607. 


94  JOHN  MARSHALL 

contract  made  before  the  law ;  and  then 
again  that  it  did  not  forbid  the  same  thing 
as  touching  a  contract  made  after  the  law, 
Marshall,  who  gave  the  opinion  in  the  first 
case,  put  it  on  a  ground  equally  applicable 
to  the  second ;  and  so,  in  the  second  case, 
gave  a  dissenting  opinion.  The  obligation 
of  the  contract,  he  said,  comes  from  the 
agreement  of  the  party  ;  it  does  not  arise 
from  the  law  of  the  State  at  the  time  it  was 
made,  entering  into  or  operating  on  the  con 
tract.  But  this  doctrine  and  this  reasoning 
were  justly  disallowed. 

Finally,  in  1830,  in  Craig  v.  Missouri, 
Marshall  gave  the  opinion  that  certain  cer 
tificates  issued  by  a  State  in  return  for  depos 
its,  and  intended  to  circulate  as  money,  were 
bills  of  credit ;  and  as  such  forbidden  by 
the  Constitution.  There  were  three  dissent 
ing  opinions;  and  soon  after  Marshall's 
death,  a  different  doctrine  was  established 
by  the  court,  —  wisely  it  would  seem,  —  and 
has  ever  since  been  maintained.  V 

Coming  now  to  the  tMrd_class_of  cases 
1  See,  however,  Chancellor  Kent  in*2  N.  Y.  Rev.  372. 


CONSTITUTIONAL  OPINIONS        95 

mentioned  above,  that  which  deals  with  the 
fundamental  conceptions  and  theory  of  our 
American  doctrine  of  constitutional  law, 
Marbury  v.  Madison  is  the  chief  case.  In 
speaking  of  that  case  I  have  purposely  de 
layed  until  this  point  any  reference  to  this 
aspect  of  it.  While,  historically,  this  part 
of  it  is  what  gives  the  case  its  chief  import 
ance,  yet  it  occupies  only  about  a  quarter  of 
the  opinion. 

In  outline,  the  argument  there  presented 
is  as  follows :  The  question  is  whether  a 
court  can  give  effect  to  an  unconstitutional 
act  of  the  legislature.  This  question  is 
answered,  as  having  little  difficulty,  by  refer 
ring  to  a  few  "  principles  long  and  well 
established."  (1)  The  people,  in  establishing 
a  written  constitution  and  limiting  the  pow-  j 
ers  of  the  legislature,  intend  to  control  it;  \ 
else  the  legislature  could  change  the  consti 
tution  by  an  ordinary  act.  (2)  If  a  superior 
law  is  not  thus  changeable,  then  an  uncon 
stitutional  act  is  not  law.  This  theory,  it 
is  added,  is  essentially  attached  to  a  writ 
ten  constitution.  (3)  If  the  act  is  void,  it 


96  JOHN  MARSHALL 

cannot  bind  the  court.  The  court  lias  to 
say  what  the  law  is,  and  in  saying  this  must 
judge  between  the  Constitution  and  the  act. 
Otherwise,  a  void  act  would  be  obligatory ; 
and  this  would  be  saying  that  constitutional 
limits  upon  legislation  may  be  transgressed 
by  the  legislature  at  pleasure,  and  thus  these 
limits  would  be  reduced  to  nothing.  (4)  The 
language  of  the  Federal  instrument  gives 
judicial  power  in  "  cases  arising  under  the 
Constitution."  Judges  are  thus  in  terms  re 
ferred  to  the  Constitution.  They  are  sworn 
to  support  it  and  cannot  violate  it.  And  so, 
it  is  said,  in  conclusion,  the  peculiar  phrase 
ology  of  the  instrument  confirms  what  is 
supposed  to  be  essential  to  all  written  con 
stitutions,  that  a  law  repugnant  to  it  is  void, 
and  that  the  courts,  as  well  as  other  depart 
ments,  are  bound  by  the  constitution. 

The  reasoning  is  mainly  that  of  Hamil 
ton,  in  his  short  essay  of  a  few  years  before 
in  the  "  Federalist."  The  short  and  dry 
treatment  of  the  subject,  as  being  one  of 
no  real  difficulty,  is  in  sharp  contrast  with 
the  protracted  reasoning  of  McCulloch  v. 


CONSTITUTIONAL  OPINIONS       97 

Maryland,  Cohens  v.  Virginia,  and  other 
great  cases ;  and  this  treatment  is  much  to 
be  regretted.  Absolutely  settled  as  the 
general  doctrine  is  to-day,  and  sound  as  it 
is,  when  regarded  as  a  doctrine  for  the 
descendants  of  British  colonists,  there  are 
grave  and  far-reaching  considerations  — 
such,  too,  as  affect  to-day  the  proper  admin 
istration  of  this  extremely  important  power 
—  which  are  not  touched  by  Marshall,  and 
which  must  have  commanded  his  attention 
if  the  subject  had  been  deeply  considered 
and  fully  expounded  according  to  his  later 
method.  His  reasoning  does  not  answer 
the  difficulties  that  troubled  Swift,  after 
wards  chief  justice  of  Connecticut,  and 
Gibson,  afterwards  chief  justice  of  Penn 
sylvania,  and  many  other  strong,  learned, 
and  thoughtful  men ;  not  to  mention  Jeffer 
son's  familiar  and  often  ill-digested  objec 
tions. 

It  assumes  as  an  essential  feature  of  a 
written  constitution  what  does  not  exist  in 
any  one  of  the  written  constitutions  of 
Europe.  It  does  not  remark  the  grave  dis- 


98  JOHN  MARSHALL 

tinction  between  the  power  of  disregarding 
the  act  of  a  coordinate  department,  and  the 
action  of  a  federal  court  in  dealing  thus 

•  with  the  legislation  of  the  local  States;  a 
distinction  important  in  itself,  and  observed 
under  the  written  constitutions  of  Europe, 

j  which,  as  I  have  said,  allow  this  power  in 

:  the  last  sort  of  case,  while  denying  it  in  the 

|  other. 

Had  Marshall  dealt  with  this  subject  after 
the  fashion  of  his  greatest  opinions  he  must 
also  have  considered  and  passed  upon  cer 
tain  serious  suggestions  arising  out  of  the 
arrangements  of  our  own  constitutions  and 
the  exigencies  of  the  different  departments. 
All  the  departments,  and  not  merely  the 
judges,  are  sworn  to  support  the  Constitu 
tion.  All  are  bound  to  decide  for  them 
selves,  in  the  first  instance,  what  this  instru 
ment  requires  of  them.  None  can  have  help 
from  the  courts  unless,  in  course  of  time, 
some  litigated  case  should  arise;  and  of 
some  questions  it  is  true  that  they  never 
can  arise  in  the  way  of  litigation.  What 
was  Andrew  Johnson  to  do  when  the  Kecon- 


CONSTITUTIONAL  OPINIONS        99 

struct  ion  Acts  of  1867  had  been  passed  over 
his  veto  by  the  constitutional  majority,  while 
his  veto  had  gone  on  the  express  ground, 
still  held  by  him,  that  they  were  unconsti 
tutional?  He  had  sworn  to  support  the 
Constitution.  Should  he  execute  an  enact 
ment  which  was  contrary  to  the  Constitution, 
and  so  void?  Or  should  he  say,  as  he  did 
say  to  the  court,  through  his  Attorney-Gen 
eral,  that  "from  the  moment  [these  laws] 
were  passed  over  his  veto,  there  was  but  one 
duty,  in  his  estimation,  resting  upon  him, 
and  that  was  faithfully  to  carry  out  and 
execute  these  laws  "  ?  1  And  why  is  he  to 
say  this  ? 

Again,  what  is  the  House  of  Representa 
tives  to  do  when  a  treaty,  duly  made  and 
ratified  by  the  constitutional  authority, 
namely,  the  President  and  Senate,  comes 
before  it  for  an  appropriation  of  money  to 
carry  it  out?  Has  the  House,  under  these 
circumstances,  anything  to  do  with  the  ques 
tion  of  constitutionality?  If  it  thinks  the 
treaty  unconstitutional,  and  so  void,  can  it 

1  Mississippi  v.  Johnson,  4  Wallace,  475,  492  (1866). 


100  JOHN  MARSHALL 

\  vote  to  carry  it  out  ?     If  it  can,  how  is  this 

]  justified? 

Is  the  situation  necessarily  different  when 
a  court  is  asked  to  enforce  a  legislative  act  ? 
The  courts  are  not  strangers  to  the  case  of 
political  questions,  where  they  must  refuse 
to  interfere  with  the  acts  of  the  other 
departments,  —  as  in  the  case  relating  to 
Andrew  Johnson  just  referred  to ;  and  in 
dealing  with  what  are  construed  to  be  merely 
directory  provisions  of  the  Constitution ;  and 
with  the  cases,  well  approved  in  the  Su 
preme  Court  of  the  United  States,  where 
courts  refuse  to  consider  whether  provisions 
of  a  constitution  have  been  complied  with, 
which  require  certain  formalities  in  passing 
laws,  —  accepting  as  final  the  certificate  of 
the  officers  of  the  political  departments.  A 
question,  passed  upon  by  those  departments, 
is  thus  refused  any  discussion  in  the  judicial 
forum,  on  the  ground,  to  quote  the  language 
of  the  Supreme  Court,  that  "the  respect 
due  to  coequal  and  independent  depart 
ments  requires  the  judicial  department  to 
act  upon  this  assurance." 


CONSTITUTIONAL  OPINIONS       101 

So  far  as  any  necessary  conclusion  is  con 
cerned,  it  might  fairly  have  been  said,  with 
us,  as  it  is  said  in  Europe,  that  the  real 
question  in  all  these  cases  is  not  whether 
the  act  is  constitutional,  but  whether  its 
constitutionality  can  properly  be  brought  in 
question  before  a  given  tribunal.  Could 
Marshall  have  had  to  deal  with  this  great 
question,  in  answer  to  Chief  Justice  Gib 
son's  powerful  opinion  in  Eakiii  v.  Raub,  in 
1825,1  instead  of  deciding  it  without  being 
helped  or  hindered  by  any  adverse  argument 
at  all,  as  he  did,  we  should  have  had  a  far 
higher  exhibition  of  his  powers  than  the  case 
now  affords.2 

1  12  Serg.  &  Rawle,  330 ;  s.c.l  Thayer's  Const.  Cases, 
133. 

2  As  to  this  general  subject  see  "  Origin  and  Scope  of 
the  American  Doctrine  of  Constitutional  Law,"  7  Har 
vard  Law  Review,   129.      Compare  the  remark  of  Lord 
John  Russell :  "  Every  political  constitution,  in  which  dif 
ferent  bodies  share  the  supreme  power,  is  only  enabled  to 
exist  by  the  forbearance  of  those  among  whom  this  power 
is  distributed."    I  quote  this  from  the  motto  of  Woodrow 
Wilson's  fifth  chapter  in  his  Congressional  Government. 


CHAPTER  V 

THE   WORKING     OF    OUR    SYSTEM    OF    CON 
STITUTIONAL   LAW 

I  HAVE  drawn  attention  to  the  immense 
service  that  Chief  Justice  Marshall  rendered 
to  his  country  in  the  field  of  constitutional 
law,  and  have  considered  a  few  of  the  cases. 
Since  his  time  not  twice  the  length  of  his 
term  of  thirty-four  years  has  gone  by,  but 
more  than  five  times  the  number  of  vol 
umes  that  sufficed  for  the  opinions  of  the 
Supreme  Court  during  his  period  is  required 
for  those  of  his  successors  on  the  bench. 
Nor  does  even  that  proportion  indicate  the 
increase  in  the  quantity  of  the  court's  busi 
ness  which  is  referable  to  this  particular 
part  of  the  law.  It  has  enormously  in 
creased.  When  one  reflects  upon  the  multi 
tude,  variety,  and  complexity  of  the  ques 
tions  relating  to  the  regulation  of  interstate 
commerce,  upon  the  portentous  and  ever 


WORKING  OF  OUR  SYSTEM          103 

increasing  flood  of  litigation  to  which  the 
Fourteenth  Amendment  has  given  rise; 
upon  the  new  problems  in  business,  govern 
ment,  and  police  which  have  come  in  with 
steam  and  electricity,  and  their  ten  thou 
sand  applications  ;  upon  the  growth  of  cor 
porations  and  of  wealth,  the  changes  of 
opinion  on  social  questions,  such  as  the  rela 
tion  of  capital  and  labor,  and  upon  the 
recent  expansions  of  our  control  over  great 
and  distant  islands,  —  we  seem  to  be  living 
in  a  different  world  from  Marshall's. 

Under  these  new  circumstances,  what  is 
happening  in  the  region  of  constitutional 
law?  Very  serious  things,  indeed. 

The  people  of  the  States,  when  making 
new  constitutions,  have  long  been  adding 
more  and  more  prohibitions  and  restraints 
upon  their  legislatures.  The  courts,  mean 
time,  in  many  places,  enter  into  the  harvest 
thus  provided  for  them  with  a  light  heart, 
and  too  promptly  and  easily  proceed  to  set 
aside  legislative  acts.  The  legislatures  are 
growing  accustomed  to  this  distrust,  and 
more  and  more  readily  incline  to  justify  it, 


104  JOHN  MARSHALL 

and  to  shed  the  consideration  of  constitu 
tional  restraints,  —  certainly  as  concerning 
the  exact  extent  of  these  restrictions,  —  turn 
ing  that  subject  over  to  the  courts;  and, 
what  is  worse,  they  insensibly  fall  into  a 
habit  of  assuming  that  whatever  they  can 
constitutionally  do  they  may  do,  —  as  if  honor 
and  fair  dealing  and  common  honesty  were 
not  relevant  to  their  inquiries. 

The  people,  all  this  while,  become  care 
less  as  to  whom  they  send  to  the  legislature  ; 
too  often  they  cheerfully  vote  for  men  whom 
they  would  not  trust  with  an  important  pri 
vate  affair,  and  when  these  unfit  persons 
are  found  to  pass  foolish  and  bad  laws,  and 
the  courts  step  in  and  disregard  them,  the 
people  are  glad  that  these  few  wiser  gentle 
men  on  the  bench  are  so  ready  to  protect 
them  against  their  more  immediate  repre 
sentatives. 

From  these  causes  there  has  developed  a 
vast  and  growing  increase  of  judicial  inter 
ference  with  legislation.  This  is  a  very  dif 
ferent  state  of  things  from  what  our  fathers 
contemplated,  a  century  and  more  ago,  in 


WORKING  OF  OUR  SYSTEM         105 

framing  the  new  system.  Seldom,  indeed, 
as  they  imagined,  under  our  system,  would 
this  great,  novel,  tremendous  power  of  the 
courts  be  exerted,  —  would  this  sacred  ark 
of  the  covenant  be  taken  from  within  the 
veil.  Marshall  himself  expressed  truly  one 
aspect  of  the  matter,  when  he  said  in  one  of 
the  later  years  of  his  life:  "No  questions  I 
can  be  brought  before  a  judicial  tribunal  of 
greater  delicacy  than  those  which  involve 
the  constitutionality  of  legislative  acts.  If 
they  become  indispensably  necessary  to  the 
case,  the  court  must  meet  and  decide  them  ; 
but  if  the  case  may  be  determined  on  other 
grounds,  a  just  respect  for  the  legislature 
requires  that  the  obligation  of  its  laws 
should  not  be  unnecessarily  and  wantonly 
assailed."  And  again,  a  little  earlier  than 
this,  he  laid  down  the  one  true  rule  of  duty 
for  the  courts.  When  he  went  to  Philadel 
phia  at  the  end  of  September,  in  1831,  on 
a  painful  errand  of  which  I  shall  speak, 
in  answering  a  cordial  tribute  from  the  bar 
of  that  city  he  remarked  that  if  he  might  be 
permitted  to  claim  for  himself  and  his  asso- 


106  JOHN  MARSHALL 

ciates  any  part  of  the  kind  things  they  had 
said,  it  would  be  this,  that  they  had  "never 
sought  to  enlarge  the  judicial  power  beyond 
its  proper  bounds,  nor  feared  to  carry  it  to 
the  fullest  extent  that  duty  required." 

That  is  the  safe  twofold  rule  ;  nor  is  the 
first  part  of  it  any  whit  less  important  than 
the  second  ;  nay,  more  ;  to-day  it  is  the  part 
which  most  requires  to  be  emphasized.  For 
just  here  comes  in  a  consideration  of  very 
great  weight.  Great  and,  indeed,  inestima- 

[  ble  as  are  the  advantages  in  a  popular  gov 
ernment  of  this  conservative  influence,  —  the 
power  of  the  judiciary  to  disregard  unconsti 
tutional  legislation,  —  it  should  be  remem 
bered  that  the  exercise  of  it,  even  when 

I  unavoidable,  is  always  attended  with  a  seri 
ous  evil,  namely,  that  the  correction  of  legis 
lative  mistakes  comes  from  the  outside,  and 
the  people  thus  lose  the  political  experience, 
and  the  moral  education  and  stimulus  that 
come  from  fighting  the  question  out  in  the 
ordinary  way,  and  correcting  their  own  errors. 
If  the  decision  in  Munn  v.  Illinois  and  the 
"  Granger  Cases,"  twenty-five  years  ago,  and 


WORKING  OF  OUR  SYSTEM         107 

in  the  "  Legal  Tender  Cases,"  nearly  thirty 
years  ago,  had  been  different ;  and  the  legis 
lation  there  in  question,  thought  by  many  to 
be  unconstitutional  and  by  many  more  to  be 
ill-advised,  had  been  set  aside,  we  should  have 
been  saved  some  trouble  and  some  harm.  But 
I  venture  to  think  that  the  good  which  came 
to  the  country  and  its  people  from  the  vigor 
ous  thinking  that  had  to  be  done  in  the  polit 
ical  debates  that  followed,  from  the  infiltra 
tion  through  every  part  of  the  population  of 
sound  ideas  and  sentiments,  from  the  rous 
ing  into  activity  of  opposite  elements,  the 
enlargement  of  ideas,  the  strengthening  of 
moral  fibre,  and  the  growth  of  political  ex 
perience  that  came  out  of  it  all,  —  that  all 
this  far  more  than  outweighed  any  evil  which 
ever  flowed  from  the  refusal  of  the  court  to 
interfere  with  the  work  of  the  legislature. 

The  tendency  of  a  common  and  easy  resort 
to  this  great  function,  now  lamentably  too 
common,  is  to  dwarf  the  political  capacity  of 
the  people,  and  to  deaden  its  sense  of  moral 
responsibility.  It  is  no  light  thing  to  do 
that. 


108  JOHN  MARSHALL 

What  can  be  done  ?  It  is  the  courts  that 
can  do  most  to  cure  the  evil ;  and  the  op 
portunity  is  a  very  great  one. '  Let  them 
resolutely  adhere  to  first  principles.  Let 
them  consider  how  narrow  is  the  function 
which  the  constitutions  have  conferred  on 
them,  —  the  office  merely  of  deciding  liti 
gated  cases;  how  large,  therefore,  is  the 
duty  intrusted  to  others,  and  above  all  to 
the  legislature.  It  is  that  body  which  is 
charged,  primarily,  with  the  duty  of  judging 
of  the  constitutionality  of  its  work.  The 
constitutions  generally  give  them  no  author 
ity  to  call  upon  a  court  for  advice ;  they 
must  decide  for  themselves,  and  the  courts 
may  never  be  able  to  say  a  word.  Such  a 
body,  charged,  in  every  State,  with  almost  all 
the  legislative  power  of  the  people,  is  enti 
tled  to  the  most  entire  and  real  respect ;  is 
entitled,  as  among  all  rationally  permissible 
opinions  as  to  what  the  constitution  allows, 
to  its  own  choice.  Courts,  as  has  often  been 
said,  are  not  to  think  of  the  legislators,  but 
of  the  legislature,  —  the  great,  continuous 
body  itself,  abstracted  from  all  the  transi- 


WORKING  OF  OUR  SYSTEM         109 

tory  individuals  who  may  happen  to  hold  its 
power.  It  is  this  majestic  representative  of 
the  people  whose  action  is  in  question,  a 
coordinate  department  of  the  government, 
charged  with  the  greatest  functions,  and  in 
vested,  in  contemplation  of  law,  with  what 
soever  wisdom,  virtue,  and  knowledge  the 
exercise  of  such  functions  requires. 

To  set  aside  the  acts  of  such  a  body,  repre 
senting  in  its  own  field,  which  is  the  very 
highest  of  all,  the  ultimate  sovereign,  should 
be  a  solemn,  unusual,  and  painful  act.  Some 
thing  is  wrong  when  it  can  ever  be  other 
than  that.  And  if  it  be  true  that  the  hold 
ers  of  legislative  power  are  careless  or  evil, 
yet  the  constitutional  duty  of  the  court  re 
mains  untouched ;  it  cannot  rightly  attempt 
to  protect  the  people,  by  undertaking  a  func 
tion  not  its  own.  On  the  other  hand,  by  ad 
hering  rigidly  to  its  own  duty,  the  court  will 
help,  as  nothing  else  can,  to  fix  the  spot  where 
responsibility  lies,  and  to  bring  down  on  that 
precise  locality  the  thunderbolt  of  popular 
condemnation.  The  judiciary,  to-day,  in 
dealing  with  the  acts  of  their  coordinate 


110  JOHN  MARSHALL 

legislators,  owe  to  the  country  no  greater  or 
clearer  duty  than  that  of  keeping  their  hands 
off  these  acts  wherever  it  is  possible  to  do 
it.  For  that  course  —  the  true  course  of 
judicial  duty  always  —  will  powerfully  help 
to  bring  the  people  and  their  representa 
tives  to  a  sense  of  their  own  responsibility. 
There  will  still  remain  to  the  judiciary  an 
ample  field  for  the  determinations  of  this 
remarkable  jurisdiction,  of  which  our  Ameri 
can  law  has  so  much  reason  to  be  proud ;  a 
jurisdiction  which  has  had  some  of  its  chief 
illustrations  and  its  greatest  triumphs,  as  in 
Marshall's  time,  so  in  ours,  while  the  courts 
were  refusing  to  exercise  it. 


CHAPTER  VI 

LETTERS    OF   MARSHALL 

No  systematic  attempt  seems  ever  to  have 
been  made  to  collect  Marshall's  letters.  It 
should  be  done.  Only  a  few  of  his  family 
letters  have  yet  found  their  way  into  print. 
One  of  them,  to  his  wife,  is  quoted  in  a  pre 
vious  page.  In  another  to  her,  written  on 
March  9, 1825,  referring  to  the  inauguration 
of  President  John  Quincy  Adams,  he  says : 
"  I  administered  the  oath  to  the  President 
in  the  presence  of  an  immense  concourse  of 
people,  in  my  new  suit  of  domestic  manufac 
ture.  He,  too,  was  dressed  in  the  same 
manner,  though  his  clothes  were  made  at  a 
different  establishment.  The  cloth  is  very 
fine  and  smooth." 

In  a  letter  of  December  7,  1834,1  to  his 
grandson,  "Mr.  John  Marshall,  jr.,"  he 
gives  the  boy  some  advice  about  writing 

1  The  Nation,  February  7,  1901. 


112  JOHN  MARSHALL 

which  is  a  good  commentary  on  the  ex 
traordinary  neatness  and  felicity,  the  close 
fit,  of  his  own  clear,  compact,  and  simple 
style :  — 

"  The  man  who  by  seeking  embellishment 
hazards  confusion  is  greatly  mistaken  in  what 
constitutes  good  writing.  The  meaning  ought 
never  to  be  mistaken.  Indeed,  the  readers 
should  never  be  obliged  to  search  for  it. 
The  writer  should  always  express  himself  so 
clearly  as  to  make  it  impossible  to  misun 
derstand  him.  He  should  be  comprehended 
without  an  effort.  The  first  step  towards 
writing  and  speaking  clearly  is  to  think 
clearly.  Let  the  subject  be  perfectly  under 
stood,  and  a  man  will  soon  find  words  to 
convey  his  meaning  to  others." 

A  letter  to  James  Monroe,  dated  Kich- 
mond,  December  2,  1784,  was  written  while 
Marshall  was  a  member  of  the  House  of 
Delegates.  He  writes  :  "  Not  a  bill  of  pub 
lic  importance,  in  which  an  individual  was 
not  particularly  interested,  has  passed.  The 
exclusive  privilege  given  to  Rumsey  and  his 
assigns  to  build  and  navigate  his  new  in- 


LETTERS  OF  MARSHALL  113 

vented  boats  is  of  as  much,  perhaps  more, 
consequence  than  any  other  bill  we  have 
passed.  We  have  rejected  some  which,  in 
my  conception,  would  have  been  advantage 
ous  to  this  country.  Among  these  I  rank 
the  bill  for  encouraging  intermarriage  with 
the  Indians.  Our  prejudices,  however,  op 
pose  themselves  to  our  interests,  and  operate 
too  powerfully  for  them.  .  .  . 

"  I  shewed  my  father  [then,  probably, 
living  in  Kentucky]  that  part  of  your  letter 
which  respects  the  western  country.  He 
says  he  will  render  you  every  service  of  the 
kind  you  mention  which  is  within  his  power 
with  a  great  deal  of  pleasure.  He  says, 
though,  that  Mr.  Humphrey  Marshall,  a 
cousin  and  brother  of  mine,1  is  better  ac 
quainted  with  the  lands  and  woidd  be  better 
enabled  to  choose  for  your  advantage  than 
he  would.  If,  however,  you  wish  rather  to 
depend  on  my  father  I  presume  he  may  avail 
himself  of  the  knowledge  of  his  son-in-law. 
I  do  not  know  what  to  say  to  your  scheme  of 
selling  out.  If  you  can  execute  it  you  will 

1  He  married  John  Marshall's  sister. 


114  JOHN  MARSHALL 

have  made  a  very  capital  sum ;  if  you  can 
retain  your  lands  you  will  be  poor  during 
life  unless  you  remove  to  the  western  coun 
try,  but  you  will  have  secured  for  posterity 
an  immense  fortune.  I  should  prefer  the 
selling  business,  and  if  you  adopt  it  I  think 
you  have  fixed  on  a  very  proper  price. 

"  Adieu.  May  you  be  very  happy  is  the 
wish  of  your  J.  MARSHALL." 

In  another  letter  to  Monroe,  while  the 
latter  was  Madison's  Secretary  of  State, 
dated  Kichmond,  June  25,  1812,  just  as  the 
war  was  beginning,  he  says :  — 

"On  my  return  to-day  from  my  farm, 
where  I  pass  a  considerable  portion  of  my 
time  in  laborious  relaxation,  I  found  a 
copy  of  the  message  of  the  President,  of 
the  1st  inst.,  accompanied  by  the  report 
of  the  Committee  of  Foreign  Relations  and 
the  declaration  of  war  against  Britain,  under 
cover  from  you. 

"  Permit  me  to  subjoin  to  my  thanks  for 
this  mark  of  your  attention  my  fervent  wish 
that  this  momentous  measure  may,  in  its 


LETTERS  OF  MARSHALL  115 

operation  on  the  interest  and  honor  of  our 
country,  disappoint  only  its  enemies. 

"  Whether  my  prayer  be  heard  or  not,  I 
shall  remain  with  respectful  esteem, 
"  Your  obedient  servant, 

"J.  MARSHALL." 

When  Marshall  went  to  France  as  envoy 
in  1797,  he  wrote  several  long  and  interest 
ing  letters  to  Washington,  acquainting  him 
with  whatever  foreign  intelligence  might  in 
terest  him.1  The  following  passages  from 
the  first  letter,  a  very  long  one,  will  show 
the  interest  of  these  papers,  and  the  exact 
ness  of  the  information  they  convey :  — 

"  THE  HAGUE,  15th  Sept.,  1797. 
"  DEAR  SIR,  —  The  flattering  evidences 
I  have  received  of  your  favorable  opinion, 
which  have  made  on  my  mind  an  impression 
only  to  wear  out  with  my  being,  added  to 
a  conviction  that  you  must  feel  a  deep  in 
terest  in  all  that  concerns  a  country  to 

1  These  letters  were  printed  in  1897  in  the  American 
Hist.  Review,  ii.  294.  I  was  not  aware  of  their  ever  hav 
ing  been  printed,  until  after  these  pages  were  in  type. 


116  JOHN  MARSHALL 

whose  service  you  have  devoted  so  large  a 
portion  of  your  life,  induce  me  to  offer  you 
such  occasional  communications  as,  while  in 
Europe,  I  may  be  enabled  to  make,  and  in 
duce  a  hope  that  the  offer  will  not  be 
deemed  an  unacceptable  or  unwelcome  in 
trusion. 

"  Until  our  arrival  in  Holland  we  saw 
only  British  and  neutral  vessels.  This  added 
to  the  blockade  of  the  Dutch  fleet  in  the 
Texel,  of  the  French  fleet  in  Brest,  and  of 
the  Spanish  fleet  in  Cadiz,  manifests  the  en 
tire  dominion  which  one  nation  at  present 
possesses  over  the  seas.  By  the  ships  of 
war  which  met  us  we  were  three  times 
visited,  and  the  conduct  of  those  who  came 
on  board  was  such  as  would  proceed  from 
general  orders  to  pursue  a  system  calculated 
to  conciliate  America.  Whether  this  be 
occasioned  by  a  sense  of  justice  and  the  ob 
ligations  of  good  faith,  or  solely  by  the 
hope  that  the  perfect  contrast  which  it  ex 
hibits  to  the  conduct  of  France  may  excite 
keener  sensations  at  that  conduct,  its  effects 
on  our  commerce  are  the  same. 


LETTERS  OF  MARSHALL  117 

"  The  situation  of  Holland  is  truly  inter 
esting.  Though  the  face  of  the  country  still 
exhibits  a  degree  of  wealth  and  population 
still  unequaled  in  any  part  of  Europe,  its 
decline  is  visible.  The  great  city  of  Amster 
dam  is  in  a  state  of  blockade.  More  than 
two  thirds  of  its  shipping  lie  unemployed  in 
port.  Other  seaports  suffer,  though  not  in 
so  great  a  degree.  In  the  mean  time  the 
requisitions  made  upon  them  are  enormous. 
They  have  just  completed  the  payment  of  the 
100,000,000  of  florins  (equal  to  40,000,000 
of  dollars)  stipulated  by  treaty ;  they  have 
sunk,  on  the  first  entrance  of  the  French, 
a  very  considerable  sum  in  assignats ;  they 
made  large  contributions  in  specifics,  and 
they  pay,  feed,  and  clothe  an  army  esti 
mated,  as  I  am  informed,  at  near  three 
times  its  real  number.  It  is  supposed  that 
France  has  by  various  means  drawn  from 
Holland  about  60,000,000  of  doUars.  This 
has  been  paid,  in  addition  to  the  natural 
expenditures,  by  a  population  of  less  than 
2,000,000.  Nor,  should  the  war  continue, 
can  the  contributions  of  Holland  stop  here- 


118  JOHN  MARSHALL 

The  increasing  exigencies  of  France  must 
inevitably  increase  her  demands  on  those 
within  her  reach. 

"  The  political  opinions  which  have  pro 
duced  the  rejection  of  the  Constitution,  and 
which,  as  it  would  seem,  can  only  be  enter 
tained  by  intemperate  and  ill-informed  minds, 
unaccustomed  to  a  union  of  theory  and  prac 
tice  of  liberty,  must  be  associated  with  a 
general  system  which  if  brought  into  action 
will  produce  the  same  excesses  here  which 
have  been  so  justly  deplored  in  France. 
The  same  materials  exist,  though  not  in 
so  great  a  degree.  They  have  their  clubs, 
they  have  a  numerous  poor,  and  they  have 
enormous  wealth  in  the  hands  of  a  minority 
of  the  nation.  On  my  remarking  this  to  a 
very  rich  and  intelligent  merchant  of  Am 
sterdam,  and  observing  that  if  one  class  of 
men  withdrew  itself  from  public  duties  and 
offices  it  would  be  immediately  succeeded  by 
another,  which  would  acquire  a  degree  of 
power  and  influence  that  might  be  exercised 
to  the  destruction  of  those  who  had  retired 


LETTERS  OF  MARSHALL  119 

from  society,  he  replied  that  the  remark  was 
just,  but  that  they  relied  «on  France  for  a 
protection  from  those  evils  which  she  had 
herself  experienced.  That  France  would 
continue  to  require  great  supplies  from  Hol 
land,  and  knew  its  situation  too  well  to  per 
mit  it  to  become  the  prey  of  anarchy.  That 
Holland  was  an  artificial  country  acquired 
by  persevering  industry,  and  which  could 
only  be  preserved  by  wealth  and  order. 
That  confusion  and  anarchy  would  banish  a 
large  portion  of  that  wealth,  would  dry  up 
its  sources,  and  would  entirely  disable  them 
from  giving  France  that  pecuniary  aid  she 
so  much  needed.  That  under  this  impres 
sion  many  who,  though  friendly  to  the  revo 
lution,  saw  with  infinite  mortification  French 
troops  garrison  the  towns  of  Holland,  would 
now  see  their  departure  with  equal  regret. 
Thus  they  willingly  relinquished  national  in 
dependence  for  individual  safety.  What  a 
lesson  to  those  who  would  admit  foreign  in 
fluence  into  the  United  States!  "... 

The  condition  of  affairs  in  Paris  at  that 
time  is  illustrated  by  the  fact  that  Marshall's 


120  JOHN  MARSHALL 

later  letters,  written  from  there,  were  not 
signed  ;  and  that  they  allude  to  the  action  of 
himself  and  his  associates  in  the  third  per 
son.  Thus,  writing  from  Paris,  October  24, 
1797,  in  the  character  of  an  anonymous  pri 
vate  American  to  an  unnamed  correspond 
ent,  he  says  :  — 

"  Causes  which  I  am  persuaded  you  have 
anticipated  forbid  me  to  allow  that  free 
range  of  thought  and  expression  which  could 
alone  apologize  for  the  intrusive  character 
my  letters  bear.  Having,  however,  offered 
what  I  cannot  furnish,  I  go  on  to  substi 
tute  something  else  perhaps  not  worth  re 
ceiving.  .  .  . 

"  Our  ministers  have  not  yet,  nor  do  they 
seem  to  think  it  certain  that  they  will  be 
received.  Indeed  they  make  arrangements 
which  denote  an  expectation  of  returning  to 
America  immediately.  The  captures  of  our 
vessels  seem  to  be  only  limited  by  the  ability 
to  capture.  That  ability  is  increasing,  as 
the  government  has  let  out  to  hardy  adven 
turers  the  national  frigates.  Among  those 
who  plunder  us,  who  are  most  active  in  this 


LETTERS  OF  MARSHALL  121 

infamous  business,  and  most  loud  in  vocif 
erating  criminations  equally  absurd  and  un 
true,  are  some  unprincipled  apostates  who 
were  born  in  America.  The  sea  rovers  by 
a  variety  of  means  seem  to  have  acquired 
great  influence  in  the  government.  This  in 
fluence  will  be  exerted  to  prevent  an  accom 
modation  between  the  United  States  and 
France,  and  to  prevent  any  regulations 
which  may  intercept  the  passage  of  the 
spoils  they  have  made  on  our  commerce,  to 
their  pockets.  The  government,  I  believe, 
is  but  too  well  disposed  to  promote  their 
views." 

In  a  letter  to  Judge  Peters,  of  Philadel 
phia,  dated  November  23,  1807,  just  after 
the  Burr  trial,  after  thanking  his  correspond 
ent  for  a  volume  of  "  Admiralty  Reports," 
he  has  something  to  say  of  that  case :  — 

"  I  have  as  yet  been  able  only  to  peep 
into  the  book,  not  to  read  many  of  the  cases. 
I  received  it  while  fatigued,  and  occupied 
with  the  most  unpleasant  case  which  has 
ever  been  brought  before  a  judge  in  this  or, 
perhaps,  in  any  other  country  wlu'ch  affected 


122  JOHN  MARSHALL 

to  be  governed  by  laws ;  since  the  decision 
of  which  I  have  been  entirely  from  home. 
The  day  after  the  commitment  of  Colonel 
Burr  for  a  misdemeanor  I  galloped  to  the 
mountains,  whence  I  only  returned  in  time 
to  perform  my  North  Carolina  circuit,  which 
terminates  just  soon  enough  to  enable  me  to 
be  here  to  open  the  court  for  the  ancient 
dominion.  Thus  you  perceive  I  have  suffi 
cient  bodily  employment  to  prevent  my  mind 
from  perplexing  itself  about  the  attentions 
paid  me  in  Baltimore  and  elsewhere.  I  wish 
I  could  have  had  as  fair  an  opportunity  to 
let  the  business  go  off  as  a  jest  here  as  you 
seem  to  have  had  in  Philadelphia;  but  it 
was  most  deplorably  serious,  and  I  could  not 
give  the  subject  a  different  aspect  by  treat 
ing  it  in  any  manner  which  was  in  my  power. 
I  might,  perhaps,  have  made  it  less  serious 
to  myself  by  obeying  the  public  will,  instead 
of  the  public  law,  and  throwing  a  little  more 
of  the  sombre  upon  others." 


CHAPTER  VII 

MARSHALL  AS  A  CITIZEN  AND  A  NEIGHBOR 

THERE  is  more  to  be  said  of  Marshall's 
private  and  personal  life.  After  he  went  on 
the  bench,  his  principal  non- judicial  work,  in 
the  nature  of  public  service,  seems  to  have 
been  writing  the  "Life  of  Washington," 
with  the  later  revision  and  reconstruction  of 
that  work,  and  his  activity  in  a  few  mat 
ters  of  not  too  partisan  a  sort,  such  as  were 
likely  to  engage  the  attention  of  a  public- 
spirited  citizen. 

In  1813,  at  a  meeting  of  the  citizens  of 
Richmond,  he  was  appointed  member  of  a 
Committee  of  Vigilance,  to  aid  in  defending 
the  city  against  attack  from  the  British.  On 
June  28  he  made  a  report,  for  a  sub-commit 
tee,  that  it  was  inexpedient  to  undertake  to 
fortify  the  city.  After  stating  the  topogra 
phical  and  other  reasons  for  such  an  opinion, 
the  report  goes  on  thus :  "  Your  committee 


124  JOHN  MARSHALL 

are  too  conscious  of  their  destitution  of 
professional  skill  to  advance  with  any  con 
fidence  the  opinion  they  have  formed ;  but 
the  resolution  under  which  they  act  having 
made  it  their  duty  to  give  an  opinion,  they 
say,  though  with  much  diffidence,  that  they 
do  not  think  any  attempt  to  fortify  the  city 
advisable.  It  is  to  be  saved  by  operations 
in  the  open  field,  by  facing  the  enemy  with  a 
force  which  may  deter  him  from  any  attempt 
to  penetrate  the  interior  of  our  country,  and 
which  may  impress  him  with  the  danger  of 
separating  himself  from  his  ships.  If  this 
protection  cannot  be  afforded,  Kichmond 
must  share  the  fate  of  other  places  which 
are  in  similar  circumstances.  Throughout 
the  world,  open  towns  belong  to  the  army 
which  is  master  of  the  country.  ...  If  the 
militia  be  put  into  the  best  condition  for 
service,  if  the  light  artillery  be  well  manned 
and  supplied  with  horses,  so  as  to  move  with 
celerity  to  any  point  where  its  services  may 
be  required;  if  the  cavalry  be  kept  entire 
and  in  active  service;  if  the  precaution  of 
supplying  in  sufficient  quantity  all  the  im- 


AS  CITIZEN  AND  NEIGHBOR       125 

plements  of  war  be  taken,  your  committtee 
hope  and  believe  that  this  town  will  have  no 
reason  to  fear  the  invading  foe."  1 

In  those  efforts  on  the  part  of  some  of 
the  leaders  of  Virginia  and  the  South,  early 
in  the  century,  to  rid  themselves  of  slavery, 
to  which  we  at  the  North  have  never  done 
sufficient  justice,  Marshall  took  an  active 
part. 

The  American  Colonization  Society  was 
organized  in  1816  or  1817,  with  Bushrod 
Washington  for  president.  In  1823  an  aux 
iliary  society  was  organized  at  Richmond,  of 
which  Marshall  was  president,  an  office  which 
he  held  nearly  or  quite  up  to  the  time  of  his 
death.  It  is  interesting  to  observe  that  one 
of  the  plans  for  colonization  was  to  have 
worked  out  the  abolition  of  slavery  in  Vir 
ginia  in  the  year  1901.  Of  slavery  Mar 
shall  wrote  to  a  friend,  in  1826  :  "I  concur 
with  you  in  thinking  that  nothing  portends 
more  calamity  and  mischief  to  the  Southern 
States  than  their  slave  population.  Yet  they 
seem  to  cherish  the  evil,  and  to  view  with 
1  The  Virginia  Magazine  of  History,  vii.  233. 


126  JOHN  MARSHALL 

immovable  prejudice  and  dislike  everything 
which  may  tend  to  diminish  it.  I  do  not 
wonder  that  they  should  resist  any  attempt, 
should  one  be  made,  to  interfere  with  the 
rights  of  property,  but  they  have  a  feverish 
jealousy  of  measures  which  may  do  good 
without  the  hazard  of  harm,  that,  I  think, 
very  unwise." 

In  1828,  Marshall  presided,  in  Virginia, 
over  a  convention  to  promote  internal  im 
provements.  On  this  subject  he  held  and 
freely  expressed  views,  such  as  are  now  gen 
erally  entertained,  as  to  the  power  of  the 
general  government,  and  the  expediency  of 
exerting  them.1 

In  1829,  he  allowed  himself  to  be  elected 
to  the  Virginia  convention  for  revising  the 
state  constitution,  and  took  an  active  part  in 
the  debates.  "  Tall,  in  a  long  surtout  of 
blue,  with  a  face  of  genius  and  an  eye  of 
fire,"  is  the  description  that  is  given  of  him 
in  the  convention.  On  several  questions  he 
influenced  greatly  the  course  of  the  conven 
tion,  especially  in  continuing,  for  a  score  of 

1  Chancellor  Kent  in  New  York  Eeview,  348,  349. 


AS  CITIZEN  AND  NEIGHBOR        127 

years  to  come,  the  judicial  tenure  of  office 
during  good  behavior. 

Marshall's  membership  of  the  society  of 
Free  Masons  is  sometimes  spoken  of.  It 
should  be  said  that  he  lived  to  condemn  that 
organization.  During  the  political  excite 
ment  which  followed  the  abduction  of  Mor 
gan,  he  was  asked  for~mlormation  as  to 
some  praise  of  Freemasonry  which  had  been 
publicly  attributed  to  him,  and  replied,  in 
October,  1833,  that  he  was  not  particularly 
interested  in  the  anti-masonic  excitement. 
"The  agitations  which  convulse  the  North 
did  not  pass  the  Potomac.  Consequently 
...  I  felt  no  inclination  to  volunteer  in  a 
distant  conflict,  in  which  the  wounds  that 
might  be  received  would  not  be  soothed  by 
the  consoling  reflection  that  he  suffered  in 
the  performance  of  a  necessary  duty."  And 
he  added  that  he  had  "  never  affirmed  that 
there  was  any  positive  good  or  ill  in  the 
institution  itself."  This  cautious  letter  is 
illustrated  by  an  earlier  one,  in  July,  1833, 
in  which,  writing  confidentially  to  Edward 
Everett,  he  says  that  he  became  a  Mason 


128  JOHN  MARSHALL 

soon  after  he  entered  the  army,  and  after 
wards  continued  in  the  society  because  his 
neighbors  did.  "  I  followed  the  crowd  for  a 
time,  without  attaching  the  least  importance 
to  its  object  or  giving  myself  the  trouble  to 
inquire  why  others  did.  It  soon  lost  its 
attraction,  and  though  there  are  several 
lodges  in  the  city  of  Richmond,  I  have  not 
been  in  one  of  them  for  more  than  forty 
years,  except  on  an  invitation  to  accompany 
General  Lafayette,  nor  have  I  been  a  mem 
ber  of  one  of  them  for  more  than  thirty.  It 
was  impossible  not  to  perceive  the  useless 
pageantry  of  the  whole  exhibition."  And  he 
adds  that  he  has  become  convinced  "that 
the  institution  ought  to  be  abandoned,  as 
one  capable  of  producing  much  evil  and 
incapable  of  producing  any  good  which 
might  not  be  effected  by  safe  and  open 
means."  l 

As  to  Marshall's  religious  affiliations,  he 
was  a  regular  and  devoted  attendant,  all  his 
life,  of  the  Episcopal  Church,  in  which  he 

1  Anti-masonic  Pamphlets,  Harvard   College   Library, 
No.  12,  p.  18 ;  ib.  No.  9. 


AS  CITIZEN  AND  NEIGHBOR        129 

was  brought  up ;  taking  an  active  part  in 
the  services  and  the  responses,  and  kneeling 
in  prayer,  we  are  told,  even  when  the  pews 
were  so  narrow  that  his  tall  form  had  to  be 
accommodated  by  the  projection  of  his  feet 
into  the  aisle.  His  friend,  Bishop  Meade, 
the  Episcopal  bishop  of  Virginia,  states  that 
he  was  never  a  communicant  in  that  church  ; 
and  he  quotes  a  letter  from  an  Episcopal 
clergyman  who  often  visited  Mrs.  Harvie, 
Marshall's  only  daughter,  in  her  last  illness, 
and  who  reports  from  her  the  statement 
that,  during  the  last  months  of  his  life,  he 
told  her  "that  the  reason  why  he  never 
communed  was  that  he  was  a  Unitarian  in 
opinion,  though  he  never  joined  their  soci 
ety."  It  is  added,  however,  in  the  same 
letter,  that  Mrs.  Harvie,  a  person  "  of  the 
strictest  probity,  the  most  humble  piety,  and 
the  most  clear  and  discriminating  mind," 
also  said  that,  during  these  last  months, 
Marshall  read  Keith  on  Prophecy,  and  was 
convinced  by  that  work,  and  the  fuller  in 
vestigation  to  which  it  led,  of  the  supreme 
divinity  of  Jesus,  and  wished  to  commune, 


130  JOHN  MARSHALL 

but  thought  it  his  duty  to  do  it  publicly ; 
and  while  waiting  for  the  opportunity,  died. 

The  reader  of  such  a  statement  seems 
to  perceive  or  to  conjecture  an  anxiety  to 
relieve  the  memory  of  the  Chief  Justice  of 
an  opprobrium.  y\  Whatever  the  exact  fact 
may  be  about  this  late  change  in  opinion, 
there  is  little  occasion  to  be  surprised  that 
Marshall  shared,  during  his  active  life,  the 
opinions  of  his  friend  Judge  Story.  The 
genuineness  and  the  simplicity  of  Marshall's 
lifelong  piety  are  indicated  by  another  state 
ment  reported  from  Mrs.  Harvie :  "  Her 
father  told  her  that  he  never  went  to  bed 
without  concluding  his  prayer  with  those 
which  his  mother  taught  him  when  a  child, 
viz.  the  Lord's  prayer  and  the  prayer  begin 
ning,  c  Now  I  lay  me  down  to  sleep.' " 

Marshall  was  a  man  of  vigorous  physique. 
"  He  was  always,"  says  a  descendant,1  "  de 
voted  to  walking,  but  more  especially  before 
breakfast  in  the  early  morning.  A  venerable 
professor  I  met  in  Washington  told  me  that, 
when  he  was  a  boy,  regularly  every  morning 
1  Mrs.  Hardy,  8  Green  Bag,  487. 


AS  CITIZEN  AND  NEIGHBOR        131 

at  seven  o'clock,  when  he  was  on  his  way  to 
school,  he  met  the  Chief  Justice  returning 
from  a  long  walk.  He  walked  rapidly  al 
ways.  Hon.  Horace  Binney  says:  'After 
doing  my  best  one  morning  to  overtake 
Chief  Justice  Marshall,  in  his  quick  march 
to  the  Capitol,  when  he  was  nearer  to  eighty 
than  seventy,  I  asked  him  to  what  cause  in 
particular  he  attributed  that  strong  and 
quick  step,  and  he  replied  that  he  thought  it 
was  most  due  to  his  commission  in  the  army 
of  the  Revolution,  in  which  he  had  been  a 
regular  foot  practitioner  for  six  years.' ' 

We  often  hear  of  the  Chief  Justice  at  his 
"  Quoit  Club."  He  was  a  famous  player  at 
quoits.  A  club  had  been  formed  by  some 
of  the  early  Scotch  settlers  of  Eichmond, 
and  it  came  to  include  among  its  members 
leading  men  of  the  city,  such  as  Marshall, 
Wirt,  Nicholas,  Call,  Munford,  and  others. 
Chester  Harding,  the  artist  who  painted  the 
full-length  portrait  of  Marshall  that  hangs 
in  the  Boston  Athenreum,  tells  us  of  see 
ing  him  at  the  Quoit  Club.  Fortunately, 
language  does  not,  like  paint,  limit  the  artist 


132  JOHN  MARSHALL 

to  a  single  moment  of  time.  He  gives  us 
the  Chief  Justice  in  action.  Marshall  was 
then  attending  the  Virginia  Constitutional 
Convention,  which  sat  from  October,  1829, 
to  January,  1830.  The  Quoit  Club  used  to 
meet  every  week  in  a  beautiful  grove,  about 
a  mile  from  the  city.  Harding  went  early. 
"  I  watched,"  he  says,  "  for  the  coming  of 
the  old  chief.  He  soon  approached,  with 
his  coat  on  his  arm  and  his  hat  in  his  hand, 
which  he  was  using  as  a  fan.  He  walked 
directly  up  to  a  large  bowl  of  mint  julep, 
which  had  been  prepared,  and  drank  off  a 
tumblerful  of  the  liquid,  smacking  his  lips, 
and  then  turned  to  the  company  with  a 
cheerful  '  How  are  you,  gentlemen  ? '  He 
was  looked  upon  as  the  best  pitcher  of  the 
party,  and  could  throw  heavier  quoits  than 
any  other  member  of  the  club.  The  game 
began  with  great  animation.  There  were 
several  ties  ;  and  before  long  I  saw  the  great 
Chief  Justice  of  the  United  States  down  on 
his  knees,  measuring  the  contested  distance 
with  a  straw,  with  as  much  earnestness  as  if 
it  had  been  a  point  of  law ;  and  if  he  proved 


AS  CITIZEN  AND  NEIGHBOR        133 

to  be  in  the  right,  the  woods  would  ring 
with  his  triumphant  shout."  1 

1  In  speaking  of  this  same  Club,  Mr.  G.  W.  Munford 
says :  "  We  have  seen  Mr.  Marshall,  in  later  times,  when 
he  was  Chief  Justice  of  the  United  States,  on  his  hands 
and  knees,  with  a  straw  and  a  penknife,  the  blade  of  the 
knife  stuck  through  the  straw,  holding  it  between  the 
edge  of  the  quoit  and  the  hub  ;  and  when  it  was  a  very 
doubtful  question,  pinching  or  biting  off  the  ends  of  the 
straw,  until  it  would  fit  to  a  hair." 

James  K.  Paulding  has  preserved  an  entertaining  ac 
count  of  a  game,  in  1820,  when  Jarvis,  the  artist,  was 
present,  playing,  apparently  on  the  same  side  with  the 
Chief  Justice.  "  I  remember,"  he  says,  "  in  the  course  of 
the  game,  and  when  the  parties  were  nearly  at  a  tie,  that 
some  dispute  arose  as  to  the  quoit  nearest  the  meg.  The 
Chief  Justice  was  chosen  umpire  between  the  quoit  be 
longing  to  Jarvis  and  that  of  Billy  Haxall.  The  judge 
bent  down  on  one  knee,  and  with  a  straw  essayed  the  de 
cision  of  this  important  question  on  which  the  fate  of  the 
game  in  a  great  measure  depended.  After  nicely  mea 
suring,  and  frequently  biting  off  the  end  of  the  straw, 
'  Gentlemen,'  said  he,  '  you  will  perceive  this  quoit  would 
have  it,  but  the  rule  of  the  game  is  to  measure  from  the 
visible  iron.  Now  that  clod  of  dirt  hides  almost  half  an 
inch.  But,  then  he  has  a  right  to  the  nearest  part  of  the 
meg ;  and  here,  as  you  will  perceive,  is  a  splinter,  which 
belongs  to  and  is  part  of  the  meg,  as  much  as  the  State 
of  Virginia  is  a  part  of  the  Union.  This  is  giving  Mr. 
Haxall  a  great  advantage  ;  but,  notwithstanding,  in  my 
opinion,  Jarvis  has  it  by  at  least  the  sixteenth  part  of  an 
inch,  and  so  I  decide,  like  a  just  judge,  in  my  own  favor.'  " 
2  LippincotCs  Magazine,  023,  026.  It  is  said  that  he  was 
often  appointed  thus  to  be  judge  in  his  own  case. 


134  JOHN  MARSHALL 

An  entertaining  account  has  been  pre 
served  1  of  a  meeting  of  the  club,  held,  ap 
parently,  while  Marshall  was  still  at  the 
bar,  at  which  he  and  Wickham  —  a  leading 
Virginia  lawyer,  one  of  the  counsel  of  Aaron 
Burr  —  were  the  caterers.  At  *  the  table 
Marshall  announced  that  at  the  last  meeting 
two  members  had  introduced  politics,  a  for 
bidden  subject,  and  had  been  fined  a  basket 
of  champagne,  and  that  this  was  now  pro 
duced,  as  a  warning  to  evil-doers;  as  the 
club  seldom  drank  this  article,  they  had  no 
champagne  glasses,  and  must  drink  it  in 
tumblers.  Those  who  played  quoits  retired, 
after  a  while,  for  a  game.  Most  of  the 
members  had  smooth,  highly  polished  brass 
quoits.  But  Marshall's  were  large,  rough, 
heavy,  and  of  iron,  such  as  few  of  the  mem 
bers  could  throw  well  from  hub  to  hub. 
Marshall  himself  threw  them  with  great 
success  and  accuracy,  and  often  "  rang  the 
meg."  On  this  occasion  Marshall  and  the 
Rev.  Mr.  Blair  led  the  two  parties  of  play 
ers.  Marshall  played  first,  and  rang  the 
1  See  The  Two  Parsons,  by  G.  W.  Munford. 


AS  CITIZEN  AND  NEIGHBOR        135 

meg.  Parson  Blair  did  the  same,  and  his 
quoit  came  down  plumply  on  top  of  Mar 
shall's.  There  was  uproarious  applause, 
which  drew  out  all  the  others  from  the  din 
ner  ;  and  then  came  an  animated  contro 
versy  as  to  what  should  be  the  effect  of  this 
exploit.  They  all  returned  to  the  table, 
had  another  bottle  of  champagne,  and  lis 
tened  to  arguments,  one  from  Marshall,  pro 
se,  and  one  from  Wickham  for  Parson  Blair. 
The  company  decided  against  Marshall.  His 
argument  is  a,  humorous  companion  piece  to 
any  one  of  his  elaborate  judicial  opinions. 
He  began  by  formulating  the  question, 
"  Who  is  winner  when  the  adversary  quoits 
are  on  the  meg  at  the  same  time?"  He 
then  stated  the  facts,  and  remarked  that  the 
question  was  one  of  the  true  construction 
and  application  of  the  rules  of  the  game. 
The  one  first  ringing  the  meg  has  the  ad 
vantage.  No  other  can  succeed  who  does 
not  begin  by  displacing  this  first  one.  The 
parson,  he  willingly  allowed,  deserves  to  rise 
higher  and  higher  in  everybody's  esteem; 
but  then  he  must  n't  do  it  by  getting  on 


136  JOHN  MARSHALL 

another's  back  in  this  fashion.  That  is 
more  like  leapfrog  than  quoits.  Then, 
again,  the  legal  maxim  is,  Cujus  est  solum, 
ejus  est  usque  ad  ccdum,  —  his  own  right  as 
first  occupant  extends  to  the  vault  of  hea 
ven;  no  opponent  can  gain  any  advantage 
by  squatting  on  his  back.  He  must  either 
bring  a  writ  of  ejectment,  or  drive  him  out 
vi  et  armis.  And  then,  after  further  argu 
ment  of  the  same  sort,  he  asked  judgment, 
and  sat  down  amidst  great  applause. 

Mr.  Wickham  then  rose,  and  made  an 
argument  of  a  similar  pattern.  No  rule,  he 
said,  requires  an  impossibility.  Mr.  Mar 
shall's  quoit  is  twice  as  large  as  any  other ; 
and  yet  it  flies  from  his  arm  like  the  iron 
ball  at  the  Grecian  games  from  the  arm  of 
Ajax.  It  is  an  iron  quoit,  unpolished,  jagged, 
and  of  enormous  weight.  It  is  impossible 
for  an  ordinary  quoit  to  move  it.  With 
much  more  of  the  same  sort,  he  contended 
that  it  was  a  drawn  game.  After  very  ani 
mated  voting,  designed  to  keep  up  the  uncer 
tainty  as  long  as  possible,  it  was  so  decided. 
Another  trial  was  had,  and  Marshall  clearly 
won. 


AS  CITIZEN  AND  NEIGHBOR        137 

All  bis  life  he  played  this  game.  There 
is  an  account  of  a  country  barbecue  in  the 
mountain  region,  where  a  casual  guest  saw 
him,  then  an  old  man,  emerge  from  a  thicket 
which  bordered  a  brook,  carrying  a  pile  of 
flat  stones  as  large  as  he  could  hold  between 
his  right  arm  and  his  chin.  He  stepped 
briskly  up  to  the  company  and  threw  them 
down.  "  There  !  Here  are  quoits  enough 
for  us  all." 

Of  Marshall's  simple  habits,  remarkable 
modesty,  and  engaging  simplicity  of  con 
duct  and  demeanor,  every  one  who  knew  him 
speaks.  These  things  were  in  the  grain, 
and  outlasted  all  the  wear  and  tear  of  life. 
"  What  was  it  in  him  which  most  impressed 
you  ?  "  asked  one  of  his  descendants,  now  a 
distinguished  judge,1  of  an  older  relative  who 
had  known  him.  "  His  humility,"  was  her 
answer.  "  With  Marshall,"  wrote  President 
Quincy,  "I  had  considerable  acquaintance 
during  the  eight  years  I  was  member  of 
Congress,  from  1805  to  1813,  played  chess 

1  Mr.  Justice  Keith,  now  President  of  the  Virginia 
Court  of  Appeals. 


138  JOHN  MARSHALL 

with  him,  and  never  failed  to  be  impressed 
with  the  frank,  cordial,  childlike  simplicity 
and  unpretending  manner  of  the  man,  of 
whose  strength  and  breadth  of  intellectual 
power  I  was  .  .  .  well  apprised." 

"  Nothing  was  more  usual,"  we  are  told, 
as  regards  his  life  in  Richmond,  "than  to 
see  him  returning  from  market,  at  sunrise, 
with  poultry  in  one  hand  and  a  basket  of 
vegetables  in  the  other."  And,  again,  some 
one  speaks  of  meeting  him  on  horseback,  at 
sunrise,  with  a  bag  of  seeds  before  him,  on 
his  way  to  his  farm,  three  or  four  miles  out 
of  town.  It  was  of  this  farm  that  he  wrote 
to  James  Monroe,  his  old  friend  and  school 
mate,  about  passing  so  much  time  in  "  labo 
rious  relaxation"  The  italics  are  his  own. 

In  speaking  of  Marshall's  personal  quali 
ties  and  ways,  I  must  quote  from  those  ex 
quisite  passages  in  Judge  Story's  address, 
delivered  in  the  fall  of  1835,  to  the  Suffolk 
bar,  in  which  his  own  true  affection  found 
expression:  "Upon  a  first  introduction  he 
would  be  thought  to  be  cold  and  reserved ; 
but  he  was  neither  the  one  nor  the  other.  "  It 


AS  CITIZEN  AND  NEIGHBOR        139 

was  simply  a  habit  of  easy  taciturnity,  watch 
ing,  as  it  were,  his  own  turn  to  follow  the 
line  of  conversation,  and  not  to  presume  to 
lead  it.  ...  Meet  him  in  a  stage-coach  as  a 
stranger,  and  travel  with  him  a  whole  day, 
and  you  would  only  be  struck  with  his  readi 
ness  to  administer  to  the  accommodation  of 
others,  and  his  anxiety  to  appropriate  least 
to  himself.  Be  with  him  the  unknown  guest 
at  an  inn,  and  he  seemed  adjusted  to  the 
very  scene ;  partaking  of  the  warm  welcome 
of  its  comforts,  whenever  found ;  and  if  not 
found,  resigning  himself  without  complaint 
to  its  meanest  arrangements.  .  .  .  He  had 
great  simplicity  of  character,  manners,  dress, 
and  deportment,  and  yet  with  a  natural  dig 
nity  that  suppressed  impertinence  and  si 
lenced  rudeness.  His  simplicity  .  .  .  had  an 
exquisite  naivete,  which  charmed  every  one, 
and  gave  a  sweetness  to  his  familiar  con 
versation  approaching  to  fascination.  The 
first  impression  of  a  stranger,  upon  his  intro 
duction  to  him,  was  generally  that  of  disap 
pointment.  It  seemed  hardly  credible  that 
such  simplicity  should  be  the  accompaniment 


140  JOHN  MARSHALL 

of  such  acknowledged  greatness.  The  con 
sciousness  of  power  was  not  there ;  the  air 
of  office  was  not  there ;  there  was  no  play  of 
the  lights  or  shades  of  rank,  no  study  of  effect 
in  tone  or  bearing." 

Add  to  this  what  Judge  Story  said  from 
the  bench,  in  receiving  the  resolutions  of 
the  Bar  of  the  Supreme  Court  after  Mar 
shall's  death:  "But,  above  all,  he  was  the 
ornament  of  human  nature  itself,  in  the 
beautiful  illustrations  which  his  life  con 
stantly  presented,  of  its  most  attractive 
graces,  and  its  most  elevated  attributes."  1 

Of  Marshall's*  appearance  on  the  bench  we 
have  a  picture  in  one  of  Story's  letters  from 
Washington,  while  he  was  at  the  bar.  He 
is  writing  in  1808,  the  year  after  the  Burr 
trial.  "Marshall,"  he  says,  "is  of  a  tall, 
slender  figure,  not  graceful  or  imposing,  but 
erect  and  steady.  His  hair  is  black,  his  eyes 
small  and  twinkling,  his  forehead  rather  low, 
but  his  features  are  in  general  harmonious. 
His  manners  are  plain,  yet  dignified  ;  and  an 
unaffected  modesty  diffuses  itself  through  all 
1 10  Petera's  Reports,  vii. 


AS  CITIZEN  AND  NEIGHBOR        141 

his  actions.  His  dress  is  very  simple,  yet 
neat;  his  language  chaste,  but  hardly  ele 
gant  ;  it  does  not  flow  rapidly,  but  it  seldom 
wants  precision.  In  conversation  he  is  quite 
familiar,  but  is  occasionally  embarrassed  by 
a  hesitancy  and  drawling.  ...  I  love  his 
laugh,  —  it  is  too  hearty  for  an  intriguer,  — 
and  his  good  temper  and  unwearied  patience 
are  equally  agreeable  on  the  bench  and  in 
the  study." 

Daniel  Webster,  in  1814,  while  he  was  a 
member  of  Congress  from  New  Hampshire, 
wrote  to  his  brother :  "  There  is  no  man  in 
the  court  that  strikes  me  like  Marshall.  He 
is  a  plain  man,  looking  very  much  like  Colo 
nel  Adams,  and  about  three  inches  taller.  I 
have  never  seen  a  man  of  whose  intellect 
I  had  a  higher  opinion." 

In  the  year  1808,  when  Judge  Story  wrote 
what  has  just  been  quoted,  Marshall  was 
sketched  in  chalk  by  St.  Memin.  It  is  a 
beautiful  portrait,  which  its  present  owner, 
Mr.  Thomas  Marshall  Smith,  of  Baltimore, 
John  Marshall's  great-grandson,  has  now 
generously  allowed  to  be  copied  for  the  use 
of  the  public. 


142  JOHN  MARSHALL 

It  was  in  1830  that  Chester  Harding 
painted  for  the  Boston  Athenaeum  the  full- 
length  portrait,  of  which,  a  little  later,  he 
made  the  replica,  afterwards  purchased,  by 
subscription,  for  the  Harvard  Law  School. 
"  I  consider  it,"  says  Harding,  "  a  good  pic 
ture.1  I  had  great  pleasure  in  painting  the 
whole  of  such  a  man.  .  .  .  When  I  was  ready 
to  draw  the  figure  into  his  picture,  I  asked 
him,  in  order  to  save  time,  to  come  to  my 
room  in  the  evening.  .  .  .  An  evening  was  ap 
pointed  ;  but  he  could  not  come  until  after  the 
4  consultation,'  which  lasts  until  about  eight 
o'clock."  It  will  be  remembered  that  the 
judges,  at  that  time,  used  to  lodge  together, 
in  one  house.  "  It  was  a  warm  evening,"  con 
tinues  Harding,  "  and  I  was  standing  011  my 
steps  waiting  for  him,  when  he  soon  made  his 
appearance,  but,  to  my  surprise,  without  a  hat. 
I  showed  him  into  my  studio,  and  stepped 

1  The  half-length,  sitting  portrait  of  Marshall,  in  the 
dining-hall  at  Cambridge,  was  painted  by  Harding-,  in 
1828,  for  the  Chief  Justice  himself ;  and  by  him  given  to 
Judge  Story,  "  to  be  preserved,  when  I  shall  sleep  with 
my  fathers,  as  a  testimonial  of  sincere  and  affectionate 
friendship."  Story  bequeathed  it  to  the  college. 


AS  CITIZEN  AND  NEIGHBOR       143 

back  to  fasten  the  front  door,  when  I  en 
countered  [several  gentlemen]  who  knew  the 
judge  very  well.  They  had  seen  him  passing 
by  their  hotel  in  his  hatless  condition,  and 
with  long  strides,  as  if  in  great  haste,  and 
had  followed,  curious  to  know  the  cause  of 
such  a  strange  appearance.  .  .  .  He  said  that 
the  consultation  lasted  longer  than  he  ex 
pected,  and  he  hurried  off  as  quickly  as  pos 
sible  to  keep  his  appointment  with  me."  He 
declined  the  offer  of  a  hat  on  his  return : 
"  Oh  no,  it  is  a  warm  night ;  I  shall  not  need 
one." 

A  good  many  artists  tried  their  hands  on 
the  Chief  Justice,  and  with  every  sort  of 
result.  Some  depicted  a  dull  and  wooden 
person,  some  a  worthy  but  feeble  one.  Other 
portraits,  commended  for  their  likeness  to 
the  original,  differ  much  in  what  they  repre 
sent.1 

1  See  an  interesting  article  by  Mr.  Justice  Bradley,  of 
the  Supreme  Court  of  the  United  States,  on  portraits  of 
Marshall,  in  the  Century  Magazine  for  September,  1880, 
(vol.  38,  page  778.)  A  portrait  by  Jarvis,  valued  as  a 
work  of  art  and  as  a  good  likeness,  is  in  the  possession  of 
Mr.  Justice  Gray.  Mr.  Justice  Bradley  appears  to  be 


144  JOHN  MARSHALL 

In  tlie  written  descriptions  of  him,  also, 
one  needs  to  compare  several  before  he  can 
feel  much  assurance  of  the  true  image.  In 
an  anonymous  account  of  him,  preserved  in 
Van  Santvoord's  "  Lives  of  the  Chief  Jus 
tices,"  *  the  reader  seems  to  perceive  the 
humorous  exaggerations  of  an  entertaining 
and  practiced  writer,  but,  taken  with  due 
allowance,  the  description  may  well  be  pre 
served. 

"  As  to  face  and  figure,"  says  this  account, 
"  nature  had  been  equally  little  at  pains  to 
stamp,  with  any  princely  effigy  of  what 
pleases,  the  virgin  gold  of  which  she  had 
composed  his  head  and  heart.  Except  that 
his  countenance  was  thoughtful  and  benig 
nant,  it  had  nothing  about  it  that  would 
have  commanded  a  second  look.  Separately 
his  features  were  but  indifferent,  jointly 
they  were  no  more  than  commonplace.  Then 
as  to  stature,  shape,  and  carriage,  there  was 

wrong1  in  saying  that  there  is  a  full-length  of  Marshall  at 
Washington  and  Lee  University.     There  are  two  portraits 
of  him  there,  but,  as  I  am  assured,  no  full-length. 
1  P.  303,  n. 


AS  CITIZEN  AND  NEIGHBOR       145 

nothing  in  him  that  was  not  the  opposite  of 
commanding  or  prepossessing ;  he  was  tall, 
yet  his  height  was  without  the  look  of  either 
strength  or  lightness,  and  gave  neither  dig 
nity  nor  grace.  His  body  seemed  as  ill  as 
his  mind  well  compacted ;  he  not  only  was 
without  proportion,  but  of  members  singu 
larly  knit,  that  dangled  from  each  other  and 
looked  half  dislocated.  Habitually  he  dressed 
very  carelessly ;  in  the  garb,  I  should  not 
dare  to  say  in  the  mode,  of  the  last  century. 
You  would  have  thought  he  had  on  the  old 
clothes  of  a  former  generation,  not  made  for 
him  by  even  some  superannuated  tailor  of 
the  period,  but  gotten  from  the  wardrobe 
of  some  antiquated  slop-shop  of  second-hand 
raiment.  Shapeless  as  he  was,  he  would 
probably  have  defied  all  fitting,  by  whatever 
skill  of  the  shears ;  judge  then  how  the  vest 
ments  of  an  age  when,  apparently,  coats  and 
breeches  were  cut  for  nobody  in  particular, 
and  waistcoats  were  almost  dressing  gowns, 
sat  upon  him." 

Such  a  statement  should  be  supplemented 
by  what  one  of  his  family  said  of  him  :  «  The 


146  JOHN  MARSHALL 

descriptions  of  his  dress  are  greatly  exagger 
ated  ;  he  was  regardless  of  style  and  fashion, 
but  all  those  who  knew  him  best  testified  to 
the  extreme  neatness  of  his  attire."  x 

1  Mrs.  Hardy,  quoting  her  grandmother,  in  8  Green 
Bag,  484. 


CHAPTER  VIII 

HIS   LAST   DAYS 

THE  year  1831  was  a  sad  one  for  Mar 
shall.  The  greatest  apprehensions  were  felt 
for  his  health.  "  "YVirt,"  says  John  Quincy 
Adams  in  his  diary,  on  February  13,  1831, 
"  spoke  to  me,  also,  in  deep  concern  and 
alarm  at  the  state  of  Chief  Justice  Mar 
shall's  health."  In  the  autumn  he  went  to 
Philadelphia  to  undergo  the  torture  of  the 
operation  of  lithotomy,  before  the  days  of 
ether.  It  was  the  last  operation  performed 
by  the  distinguished  surgeon,  Dr.  Physick. 
Another  eminent  surgeon,  who  assisted  him, 
Dr.  Randall,  has  given  an  account  of  this 
occasion,  in  which  he  says :  — 

"  It  will  be  readily  admitted  that,  in  con 
sequence  of  Judge  Marshall's  very  advanced 
age,  the  hazard  attending  the  operation, 
however  skillfully  performed,  was  consider 
ably  increased.  I  consider  it  but  an  act  of 


148  JOHN  MARSHALL 

justice,  due  to  the  memory  of  that  great  and 
good  man,  to  state  that,  in  my  opinion,  his 
recovery  was  in  a  great  degree  owing  to  his 
extraordinary  self-possession,  and  to  the 
calm  and  philosophical  views  which  he  took 
of  his  case,  and  the  various  circumstances 
attending  it. 

"  It  fell  to  my  lot  to  make  the  necessary 
preparations.  In  the  discharge  of  this  duty 
I  visited  him  on  the  morning  of  the  day 
fixed  on  for  the  operation,  two  hours  pre 
viously  to  that  at  which  it  was  to  be  per 
formed.  Upon  entering  his  room  I  found 
him  engaged  in  eating  his  breakfast.  He 
received  me  with  a  pleasant  smile  upon  his 
countenance,  and  said :  '  Well,  doctor,  you 
find  me  taking  breakfast,  and  I  assure  you  I 
have  had  a  good  one.  I  thought  it  very 
probable  that  this  might  be  my  last  chance, 
and  therefore  I  determined  to  enjoy  it  and 
eat  heartily.'  I  expressed  the  great  plea 
sure  which  I  felt  at  seeing  him  so  cheer 
ful,  and  said  that  I  hoped  all  would  soon  be 
happily  over.  He  replied  to  this  that  he 
did  not  feel  the  least  anxiety  or  uneasiness 


HIS  LAST  DAYS  149 

respecting  the  operation  or  its  results.  He 
said  that  he  had  not  the  slightest  desire  to 
live,  laboring  under  the  sufferings  to  which 
he  was  then  subjected ;  that  he  was  per 
fectly  ready  to  take  all  the  chances  of  an 
operation,  and  he  knew  there  were  many 
against  him  ;  and  that  if  he  could  be  relieved 
by  it  he  was  willing  to  live  out  his  appointed 
time,  but  if  not,  would  rather  die  than  hold 
existence  accompanied  with  the  pain  and 
misery  which  he  then  endured. 

"  After  he  finished  his  breakfast  I  admin 
istered  to  him  some  medicine ;  he  then  in 
quired  at  what  hour  the  operation  would  be 
performed.  I  mentioned  the  hour  of  eleven. 
He  said,  4  Very  well,  do  you  wish  me  now  for 
any  other  purpose,  or  may  I  lie  down  and 
go  to  sleep  ? '  I  was  a  good  deal  surprised 
at  this  question,  but  told  him  that  if  he 
coidd  sleep  it  would  be  very  desirable.  He 
immediately  placed  himself  upon  the  bed, 
and  fell  into  a  profound  sleep,  and  continued 
so  until  I  was  obliged  to  rouse  him  in  order 
to  undergo  the  operation.  He  exhibited  the 
same  fortitude,  scarcely  uttering  a  murmur, 


150  JOHN  MARSHALL 

throughout  the  whole  procedure,  which,  from 
the  peculiar  nature  of  his  complaint,  was 
necessarily  tedious." 

From  the  patient  over  a  thousand  calculi 
were  taken.  He  had  a  perfect  recovery; 
nor  did  the  disorder  ever  return.1 

On  Christmas  Day  of  that  year,  as  I  have 
said,  his  wife  died,  the  object  of  his  tender- 
est  affection  ever  since  he  had  first  seen  her, 
more  than  fifty  years  before.  The  day  be 
fore  she  died,  she  hung  about  his  neck  a 
locket  with  some  of  her  hair.  He  wore  it 
always,  night  and  day ;  and,  by  his  order, 
it  was  the  last  thing  removed  from  his  body 
when  he  died.2 

It  was  at  this  period,  in  1831  and  1832, 

1  My  friend  Dr.  Horace  Howard  Furness,  of  Phila 
delphia,  writes  (and  allows  me  to  quote) :  "  I  remember 
hearing  my  father  say  that  Dr.  Physick  told  him,  just 
after  that  operation  of  lithotomy,  that  he  had  '  washed 
the  judge  out  as  clean  as  a  plate,'  and  that  he  went  on 
to  say  that  after  the  operation  the  strictest  quiet  was  en 
joined,  not  a  muscle  was  to  be  moved ;  but  what  was  his 
alarm  on  his  next  visit  to  see  Judge  Marshall  sitting  up 
in  bed  with  paper  and  pencil  on  his  knees,  writing  to  his 
wife!  " 

2  Marion  Harland,  Old  Colonial  Homesteads,  98. 


HIS  LAST  DAYS  151 

that  Inman's  fine  portrait  of  him,  now  hang 
ing  in  the  rooms  of  the  Law  Association 

O 

of  Philadelphia,  was  painted,  for  the  bar  of 
that  city.  A  replica  which  Marshall  him 
self  bought  for  his  daughter,  is  on  the  walls 
of  the  state  library  in  Richmond.  This  por 
trait  is  regarded  as  the  best  of  those  painted 
in  his  later  life.  Certainly  it  best  answers 
the  description  of  him  by  an  English  tra 
veler,  who,  seeing  him  often  in  the  spring 
of  1835,  remarked  that  "the  venerable 
dignity  of  his  appearance  would  not  suffer 
in  comparison  with  that  of  the  most  re 
spected  and  distinguished-looking  peer  in 
the  British  House  of  Lords."  l 

After  his  recovery,  in  1831,  Marshall 
seems  to  have  been  in  good  health  down  to 
the  early  part  of  1835.  Then,  we  are  told, 
he  suffered  "  severe  contusions "  in  the 
stage-coach  in  returning  from  Washington.2 

1  Travels  in  North  America,  by  Hon.  Charles  Augustus 
Murray,  —  "  the   late    Sir  Charles  Murray,  at  one  time 
Master  of  the  Household  to  the  Queen,  who,  as  a  young 
man,  was  attached  to  the  British  Legation  at  Washington." 

-  The  Spectator,  February  9,  1901,  p.  199. 

2  Many  a  "  severe  contusion  "  must  he  have  suffered  in 


152  JOHN  MARSHALL 

His  health  now  rapidly  declined.  He  went 
again  for  relief  to  Philadelphia,  and  died 
there  on  July  6,  1835,  of  a  serious  disorder 
of  the  liver.  He  had  missed  from  his  bed 
side  his  oldest  son,  Thomas,  for  whom  he 
had  been  asking.  Upon  the  gravestone  of 
that  son,  behind  the  old  house  at  Oakhill, 
you  may  read  the  pathetic  tragedy,  withheld 
from  his  father,  that  accounts  for  this  ab 
sence.  While  hastening  to  Philadelphia,  at 
the  end  of  June,  he  was  passing  through  the 
streets  of  Baltimore,  in  the  midst  of  a  tem 
pest,  and  was  killed  by  the  falling  of  a 
chimney  in  the  storm. 

The  great  Chief  Justice  was  carried  home 
with  every  demonstration  of  respect  and 
reverence.  He  was  buried  by  the  side  of 

those  primitive  days,  from  upsets  and  joltings,  in  driving 
every  year  between  Richmond  and  Washington,  some 
120  miles  each  way;  from  Richmond  to  Raleigh  and 
back,  in  attending  his  North  Carolina  circuit,  about  175 
miles  each  way ;  and  between  Richmond  and  Oakhill, 
his  country  place,  every  summer,  about  100  miles  each 
•way.  For  instance,  in  1812,  Cranch,  the  reporter,  re 
marks  that  Marshall  was  not  present  at  the  beginning  of 
the  term,  as  he  "  received  an  injury  by  the  oversetting 
of  the  stage-coach  on  his  journey  from  Richmond." 


HIS  LAST  DAYS  153 

his  wife,  in  the  Shockoe  Hill  Cemetery  in 
Richmond.  There,  upon  horizontal  tablets, 
are  two  inscriptions  of  affecting  simplicity, 
both  written  by  himself.  The  first  runs 
thus :  "  John  Marshall,  Son  of  Thomas  and 
Mary  Marshall,  was  born  the  24th  of  Sep 
tember,  1755.  Intermarried  with  Mary 
Willis  Ambler,  the  3d  of  January,  1783. 
Departed  this  life  the  [6th]  day  of  July, 
1835."  The  second,  thus  :  "  Sacred  to  the 
memory  of  Mrs.  Mary  Willis  Marshall, 
Consort  of  John  Marshall,  Born  the  13th  of 
March,  1766.  Departed  this  life  the  25th  of 
December,  1831.  This  stone  is  devoted  to 
her  memory  by  him  who  best  knew  her 
worth,  And  most  deplores  her  loss." 

Among  the  tributes  to  Chief  Justice 
Marshall  which  were  made  in  the  months 
that  followed  his  death,  and  in  later  times, 
nothing  finer  has  been  said  than  the  heart 
felt  expression  of  the  bar  of  his  own  circuit, 
at  Richmond,  in  November,  1835.  The 
resolutions  of  Mr.  B.  Watkins  Leigh,  unani 
mously  adopted,  recalled  "  the  memory  of 


164  JOHN  MARSHALL 

the  venerable  judge  "  who  had  presided  there 
for  more  than  thirty-four  years  "with  such 
remarkable  diligence  in  office,  that  until  he 
was  disabled  by  the  disease  which  removed 
him  from  life,  he  was  never  known  to  be  ab 
sent  from  the  bench,  during  term  time,  even 
for  a  day,  —  with  such  indulgence  to  coun 
sel  and  suitors  that  everybody's  convenience 
was  consulted  but  his  own,  —  with  a  dig 
nity,  sustained  without  effort,  and  appar 
ently  without  care  to  sustain  it,  to  which 
all  men  were  solicitous  to  pay  due  respect,  — 
with  such  profound  sagacity,  such  quick  pene 
tration,  such  acuteness,  clearness,  strength, 
and  comprehension  of  mind,  that  in  his 
hands  the  most  complicated  causes  were 
plain,  the  weightiest  and  most  difficult,  easy 
and  light,  —  with  such  striking  impartiality 
and  justice,  and  a  judgment  so  sure,  as  to 
inspire  universal  confidence,  so  that  few  ap 
peals  were  ever  taken  from  his  decisions, 
during  his  long  administration  of  justice  in 
this  court,  and  those  only  in  cases  where  he 
himself  expressed  doubt,  —  with  such  mod 
esty  that  he  seemed  wholly  unconscious  of 


HIS  LAST  DAYS  155 

his  own  gigantic  powers,  —  with  such  equa 
nimity,  such  benignity  of  temper,  such  amen 
ity  of  manners,  that  not  only  none  of  the 
judges  who  sat  with  him  on  the  bench,  but 
no  member  of  the  bar,  no  officer  of  the 
court,  no  juror,  no  witness,  no  suitor,  in  a 
single  instance,  ever  found  or  imagined,  in 
anything  said  or  done,  or  omitted  by  him, 
the  slightest  cause  of  offense. 

"  His  private  life  was  worthy  of  the  ex 
alted  character  he  sustained  in  public  sta 
tion.  The  unaffected  simplicity  of  his  man 
ners  ;  the  spotless  purity  of  his  morals ;  his 
social,  gentle,  cheerful  disposition  ;  his 
habitual  self-denial,  and  boundless  gener 
osity  towards  others ;  the  strength  and  con 
stancy  of  his  attachments,  his  kindness  to 
his  friends  and  neighbors ;  his  exemplary 
conduct  in  the  relations  of  son,  brother,  hus 
band,  father ;  his  numerous  charities  ;  his 
benevolence  toward  all  men,  and  his  ever 
active  beneficence ;  these  amiable  qualities 
shone  so  conspicuously  in  him,  throughout 
his  life,  that  highly  as  he  was  respected, 
he  had  the  rare  happiness  to  be  yet  more 


156  JOHN  MARSHALL 

beloved.  He  was,  indeed,  a  bright  example 
of  the  true  wisdom  which  consists  in  the 
union  of  the  greatest  ability  and  the  great 
est  virtue.'' 

On  the  west  side  of  the  Capitol  at  Wash 
ington,  midway  between  the  staircases  that 
ascend  from  the  garden  to  the  great  build 
ing,  and  a  little  in  advance,  there  is  a  colos 
sal  bronze  figure  of  Marshall  by  the  sculptor 
Story,  the  son  of  the  great  man's  colleague 
and  friend,  — placed  there  in  1884.  It  is  a 
very  noble  work  of  art,  worthy  of  the  sub 
ject  and  the  place.  The  Chief  Justice  is 
sitting,  clothed  in  his  judicial  robe,  in  the 
easy  attitude  of  one  engaged  in  expounding 
a  subject  of  which  he  is  master.  The  fig 
ure  is  leaning  back  in  the  chair  with  the 
head  slightly  inclining  forward ;  the  right 
arm  rests  on  the  arm  of  the  chair,  with  the 
hand  open  and  extended ;  the  left  hand, 
holding  a  scroll,  lies  easily  on  the  other  arm 
of  the  chair.  The  crossed  legs  are  covered 
by  the  gown,  while  low  shoes  and  buckles, 
and  hair  gathered  in  a  queue,  speak  of  life- 


HIS  LAST  DAYS  157 

long  habits.  The  solid  and  beautiful  head, 
and  the  grave  and  collected  dignity  of  the 
features  and  the  whole  composition  are  very 
noble,  satisfactory,  and  ideally  true. 

The  figure,  standing,  would  be  ten  feet 
high.  It  sits  seven  feet  high,  and  is  raised 
upon  a  suitable  pedestal,  decorated  with  mar 
ble  bas-reliefs  of  classical  design.  These,  if 
the  truth  were  told,  might  well  be  spared, 
but  the  statue  itself  will  fitly  commemorate 
for  many  ages  one  of  the  greatest,  noblest, 
and  most  engaging  characters  in  American 
history. 


fttoerpibe 

Ebctrotyped  and  printed  by  H.  O.  Houghton  &•  C*. 
Cambridge,  Mass.,  U.S.  A. 


14  DAY  USE 

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